Matter of Zivkovic, 46 A.D.2d 219 (1975)

Routine, unsupervised mass mail service of summonses in support proceedings is improper under the Family Court Act; a particularized determination of appropriateness in individual cases, supervised by the court, is required before mail service can be employed.

Summary

This case addresses the propriety of routinely serving summonses by mail in New York Family Court support proceedings. The Court of Appeals held that while the Family Court Act allows for mail service, it does not sanction the routine, unsupervised mass mail service practiced in New York City. The court emphasized that mail service is only appropriate in “proper cases,” requiring a particularized determination by the court that mail service is reasonably calculated to apprise the respondent of the proceeding, considering the individual circumstances.

Facts

Two separate support proceedings were consolidated for appeal. In both cases, the husband-respondents were served with summonses by mail, a routine practice in the New York City Family Court. In Matter of Zivkovic, a warrant of arrest was issued based on the petitioner’s testimony that the respondent had threatened to kill her. In Matter of Greise, a warrant was issued because the respondent failed to appear after receiving the mailed summons. In Greise, the warrant lacked an independent predicate beyond the failure to respond to the initial summons.

Procedural History

In Matter of Zivkovic, the Appellate Division affirmed the denial of the respondent’s motion to dismiss for lack of in personam jurisdiction, finding that the court gained jurisdiction when the respondent was brought before it via the arrest warrant. In Matter of Greise, the Appellate Division reversed the Family Court and granted the respondent’s motion to dismiss for lack of in personam jurisdiction, relying on a prior case, Matter of Hoggard v. Hoggard.

Issue(s)

Whether the routine, unsupervised mass mail service of summonses in support proceedings, as practiced by the Family Court in the City of New York, is permissible under Section 427 of the Family Court Act.

Holding

No, because the Family Court Act does not contemplate or sanction routine, unsupervised mass mail service; the statute requires a particularized determination of appropriateness by the court in individual cases before mail service is utilized.

Court’s Reasoning

The court interpreted Section 427 of the Family Court Act, which outlines three methods of service: personal, substituted, and mail. The court found that the Legislature did not intend to prioritize personal or substituted service over mail service. Instead, the legislative purpose was to provide greater flexibility, considering the magnitude of support cases, particularly in urban areas, where personal or substituted service may be impractical. However, the court emphasized that the language “in a proper case” explicitly repudiates routine, unsupervised mail service. It requires a submission by each petitioner sufficient to warrant a finding by the court that, under all the circumstances, mail service is reasonably calculated to apprise the respondent of the proceeding. The court noted that they need not define what constitutes a “proper case” but indicated it requires judicial oversight and a consideration of individual circumstances. The court further reasoned that in Matter of Greise, because the arrest warrant was predicated solely on the respondent’s failure to respond to the invalid summons, jurisdiction could not be acquired through the arrest. The court references Milliken v. Meyer, 311 U.S. 457, 463 and Dobkin v. Chapman, 21 N.Y.2d 490 regarding what constitutes proper notice.