Opinion
8732- 8732A
03-19-2019
In re JULIYA V., Petitioner–Appellant, v. ALEKSANDR V., Respondent–Respondent.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Sweeny, J.P., Webber, Gesmer, Singh, JJ.
Order, Family Court, New York County (Emily M. Olshansky, J.), entered on or about February 7, 2017, which denied petitioner's objection to the November 2, 2016 order of the Support Magistrate on the ground that it had not been served on respondent's assigned counsel, unanimously reversed, on the law and the facts, without costs, and the matter remanded for a determination on the merits of petitioner's objection. Order, same court and Judge, entered on or about August 1, 2017, which denied petitioner's objection to the May 19, 2017 order of the Support Magistrate, as untimely, unanimously reversed, on the law and the facts, without costs, and the matter remanded to Family Court for a determination of the objection on the merits.
Pursuant to Family Court Act 439(e), petitioner was required to serve her objections to the May 19, 2017, order within 35 days of its mailing. Despite the Family Court's assertion that the order was mailed on May 25, 2017, there is no evidence in the record to support this. Petitioner submitted a copy of an envelope stamped "May 31, 2017," in which she asserts the order was mailed, making petitioner's objections, filed July 3, 2017, timely as a matter of law (see e.g. Matter of Commissioner of Soc. Servs. v. Dietrich, 208 A.D.2d 474, 617 N.Y.S.2d 723 [1st Dept. 1994] ; Matter of Kao v. Kao, 165 A.D.3d 944, 85 N.Y.S.3d 212 [2d Dept. 2018] ). Given the absence of any other evidence in the record, and of opposition to this appeal, the envelope is accepted as unrebutted.
With regard to the issue of petitioner's service of her objections to the November 2, 2016 order of the Support Magistrate, respondent was assigned counsel purely for the violation petition and not for the support petition, as there is no right to assigned counsel for support matters ( Matter of Charity Akosua A. v. Nana A., 132 A.D.3d 462, 463, 18 N.Y.S.3d 371 [1st Dept. 2015], lv denied 26 N.Y.3d 1072, 23 N.Y.S.3d 148, 44 N.E.3d 223 [2015] ). As such, respondent was pro se on the issue of support, and petitioner's service on him was appropriate ( CPLR 2103[c] ).
We have considered petitioner's remaining arguments and find them to be beyond the scope of the appeal.