Opinion
P-25285-03
10-22-2019
In the Matter of a Custody/Visitation Proceeding J.S., Petitioner, v. F.M., Respondent.
Petitioner — Pro Se Respondent — Jerome A. Scharoff Attorney for the Child — Lauren McSwain, Children's Law Center
Petitioner — Pro Se Respondent — Jerome A. Scharoff Attorney for the Child — Lauren McSwain, Children's Law Center Judith Waksberg, J.
On or about July 25, 2019, movant's counsel, Jerome A. Scharoff, filed a motion seeking an order vacating the Order of Filiation dated May 20, 2004 pursuant to CPLR § 5015 and for such other relief as the Court may find just and proper. The Attorney for the Child filed her affirmation in opposition on or about September 4, 2019. Movant's counsel filed his reply papers on October 18, 2019.
In his motion, movant argues that the Order of Filiation dated May 20, 2004 is defective and unenforceable because it does not contain the Social Security number of the father as required by F.C.A. § 542(a). Further, he argues that despite being present in court the day the order of filiation was issued, he was never served with the order, and therefore his time to move to be relieved from the Order of Filiation had never begun to run pursuant to CPLR § 5015.
In his reply affirmation, movant for the first time alleges that he had suspicions about the validity of the DNA testing as he did not witness the sealing of the containers.
Legal Analysis
The movant's reliance on CPLR § 5015 is misguided. Pursuant to CPLR § 5015, the court is empowered to vacate a default judgment made within one year if the default is excusable. Additionally, a judgment may be vacated if there is newly-discovered evidence; fraud; misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order.
In order for movant to obtain vacatur of a default, the Order of Filiation would have had to have been made on default. Movant admits in his papers that he was present, with counsel, on the day the Order of Filiation was entered. Therefore, the order was not made on default and the order cannot be vacated on that basis. (Movant's Affidavit7 & 10).
Movant has not made any argument of newly discovered evidence that would indicate that the result of the original filiation proceeding would have changed had such evidence been presented. Mangra v. Mangra, 170 AD3d 1156, 1159 (2d Dept. 2019). In fact, movant concedes that two consecutive court-ordered DNA tests proved him to be the father. When a court-administered DNA test establishes a 95% or greater chance of paternity, there is a rebuttable presumption of paternity, which, if unrebutted, establishes the paternity of and liability for the support of a child pursuant to the Family Court Act. C.P.L.R. § 4518 (d). In this case, it is undisputed that the DNA test established paternity by a percentage of 99.99 and movant does not argue that there is any evidence rebutting his paternity.
Movant has also not alleged any fraud or misrepresentation that would show that the outcome of the proceeding would have been different or that he was otherwise entitled to vacatur. Thus, movant has not shown that he is entitled to vacatur under CPLR § 5015. See Celesia v. Celesia, 136 AD3d 854, 855 (2d Dept. 2016).
Movant's argument that the Order of Filiation is defective and unenforceable because it lacks a Social Security number is unavailing. The lack of the Social Security number is merely a clerical error and does not invalidate the order. CPLR § 5019(a) specifically states that a "judgment or order shall not be stayed, impaired or affected by any mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party." See also Gletzer v. Harris, 12 NY3d 468, 476 (2009) (holding that the "inherent court power to correct clerical errors may not be wielded when third parties have substantive rights in play that may be altered"). In the instant case, no rights have been altered and the outcome of the proceedings are not disturbed by the Court's clerical error of failing to include the movant's Social Security number on the Order of Filiation.
Finally, movant's argument that he was never served with the physical order is completely without merit. Assuming, arguendo, that that is the case, movant does not explain how that would justify vacatur of the order of filiation. Even if the order was not physically served on the movant, he had constructive knowledge of the order by his mere presence in court. See McCormick v. Axelrod, 59 NY2d 574, 583 amended, 60 NY2d 652 (1983) ("the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party"). Movant has conceded that he was present in court with counsel on the day the order was entered. He is therefore precluded from claiming a lack of jurisdiction pursuant to C.P.L.R. § 5015. His assertion that he did not know what had happened during the proceeding is also unmoving, particularly as he had participated in a DNA test whose results indicated that there was a 99.99% probability that he was the child's father. By his own admission, movant was represented by counsel who was presumably ready, willing and able to answer movant's questions, should any arise. See Capone v. Capone, 148 AD2d 565, 567 (2d Dept 1989) (noting that a negotiated agreement was fair on its face and petitioner was represented by counsel). There is thus no basis to vacate the original order of filiation.
The remainder of movant's arguments are without merit.
ORDERED:
Movant's motion is denied in its entirety.
Notify parties and counsel. Dated: October 22, 2019 __________ Honorable Judith Waksberg Judge, Family Court