IN RE: E.R. (2023)

Order, Family Court, Bronx County (Tamara Schwarzman, Ref.), entered on or about March 13, 2023, which, after a traverse hearing, granted respondent S.C.’s motion to vacate a final custody order, same court and Referee, dated May 17, 2021, entered upon her default after an inquest and awarded petitioner sole legal and physical custody of the subject child, unanimously affirmed, without costs.

Family Court properly granted respondent mother's motion to vacate the default custody order pursuant to CPLR 5015(a)(4).  There is no basis for disturbing the court's findings of fact that service was not effectuated upon respondent.  The court's determination turned, in large part, on witness credibility, the resolution of which is entitled to deference on appeal (see Arrufat v. Bhikhi, 101 A.D.3d 441, 442, 954 N.Y.S.2d 538 [1st Dept. 2012]).  Therefore, respondent was not subject to the court's jurisdiction, and it was irrelevant that petitioner, the child's paternal grandmother, may have informed respondent of the custody proceeding (see Raschel v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 504 N.E.2d 389 [1986];  Goldmark v. Keystone & Grading Corp., 226 A.D.2d 143, 144, 640 N.Y.S.2d 89 [1st Dept. 1996]).

The court permitted petitioner to serve respondent by text message;  however, petitioner's process server, the child's paternal grandfather, could not produce the text he purportedly sent to respondent with the summons and petition annexed, and he testified during the traverse hearing that his recollection of serving her was “kind of fuzzy”.  The court's conclusion that petitioner failed to carry her burden of proving that service was properly effectuated, is supported by the record (see Wells Fargo Bank, N.A. v. Gore, 162 A.D.3d 437, 74 N.Y.S.3d 748 [1st Dept. 2018];  Woods v. M.B.D. Community Hous. Corp., 90 A.D.3d 430, 430, 933 N.Y.S.2d 669 [1st Dept. 2011]).

To the extent petitioner seeks appellate review of whether respondent presented sufficient evidence to warrant a traverse hearing, the issue is academic because the hearing was held (see Wells Fargo Bank, N.A. v. Gore, 162 A.D.3d at 437, 74 N.Y.S.3d 748).  In any event, petitioner waived any objection to Family Court's finding that a traverse hearing was necessary because, in opposing the vacatur motion, petitioner suggested a traverse hearing as an alternative to vacating the default order of custody outright, and the record establishes that petitioner and her counsel willingly participated in the hearing (see Winopa Intl., Ltd. v. Woori Am. Bank, 59 A.D.3d 203, 204, 873 N.Y.S.2d 37 [1st Dept. 2009]).