E.D.T., Plaintiff, v. H.E.T., Defendant. (2025)

The following documents, numbered 1 to 9, were considered in connection with Plaintiff's Notice of Motion, dated November 20, 2025, (hereinafter "Motion Sequence No. 1"), seeking the entry of an order, inter alia, for the following:

1. Entry of a default judgment in favor of Plaintiff pursuant to CPLR § 3215(a).

PAPERS NUMBERED

Notice of Motion/Affirmation/

Affidavit of Personal Service/

Proposed Judgment of Divorce/

Proposed Findings of Fact and Conclusions of Law/

Affidavit of Service/

Certificate of Dissolution/

Affirmation of Regularity/

Affidavit of Military 1-9

Relevant Factual and Procedural History

This matrimonial action was commenced on September 9, 2025, with Plaintiff's filing of a summons with notice, New York State Domestic Relations Law (hereinafter "DRL") § 255 Notice, Notice of Automatic Orders, Notice of Guideline Maintenance, and Notice of Electronic Filing (hereinafter collectively "Summons"),¹ seeking the entry of a judgment of divorce dissolving the parties' marriage pursuant to DRL § 170(7) asserting that the parties' relationship had broken down for a period in excess of six months prior to the commencement of this action, along with granting other ancillary relief deemed proper by this Court.

On September 15, 2025, an Affidavit of Personal Service was filed by Plaintiff indicating that Defendant had been personally served with the Summons on September 9, 2025, (hereinafter "Affidavit of Service").²

On November 20, 2025, Plaintiff's counsel filed a request for judicial intervention and Motion Sequence No. 1 seeking the above-referenced relief,³ along with a note of issue, UCS-111 and a Complaint requesting the same relief sought in the Summons.⁴

No other filings have been made pertaining to the Plaintiff's instant application, nor has Defendant appeared through counsel or as a self-represented litigant.

Legal Analysis

New York State Civil Practice Law and Rules (hereinafter "CPLR") § 308 sets forth the manner within which personal service may be effectuated upon a natural person, either by doing so through delivering the summons within the state to the person to be served or through alternate means of service, with reference made to DRL § 232 indicating that such alternate service is only permissible in matrimonial actions if done pursuant to Court Order (see, Rae v. Marciano, 227 AD3d 738 [2d Dept 2024]).

DRL § 232(a) further indicates what information must be set forth in the summons served if not accompanied by a complaint and that a default judgment may not be granted in the event service of the pleadings were not effectuated pursuant to the directives set forth within the statute:

"a. In an action to annul a marriage or for divorce or for separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: "Action to annul a marriage", "Action to declare the nullity of a void marriage", "Action for a divorce", or "Action for a separation", as the case may be, and shall specify the nature of any ancillary relief demanded. A judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice."

DRL § 232(b) then directs that proof of service must be filed confirming that service was completed with the affiant confirming that the required notice was provided upon the defendant whose identity was known to the affiant:

"b. An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant or officer who executed the certificate had that he was the defendant named and how he acquired such knowledge. The court may require the affiant or officer who executed the affidavit or certificate to appear in court and be examined in respect thereto."

Accordingly, while DRL § 232(a) indicates that a plaintiff may not be awarded a judgment of divorce due to the default of a defendant unless service has been effectuated as directed in that provision, it must be read in concert with DRL § 232(b) as that provision provides for the manner within which the Court may be presented with proof of compliance with DRL § 232(a). Meaning, that compliance with both DRL § 232(a) and (b) must be met prior to the entry of a default judgment in favor of a plaintiff (Lancer v. Lancer, 70 Misc 2d 1045 [Sup. Ct. Nassau Cnty 1972] ["This is a matrimonial action and Domestic Relations Law § 232 specifically prohibits entrance of a default judgment unless service as contained therein is adhered to."]).

Turning first to DRL § 232(a), in this action the Summons was not served with the Complaint. Upon review of the Summons, it includes in legible print on its face "Action for Divorce," and specifies the nature of the ancillary relief demanded as follows:

"NOTICE: The nature of this action is to dissolve the marriage between the parties, pursuant to DRL Section 170(7) upon the grounds that the marriage has broken down irretrievably for a period of six months prior to the commencement of this action.

The relief sought is a judgment of absolute divorce in favor of the Plaintiff dissolving the marriage between the parties in this action. The nature of any ancillary or additional relief demanded is:

1. That the Plaintiff be authorized to resume, at her sole option, the use of a pre-marriage name; to wit: XXXXX

2. That under all Causes of Action, the Court grant to Plaintiff such other and further relief as the Court may deem just and proper, together with the costs and disbursements of this action."

Accordingly, this Court determines that the Summons met the requirements set forth in DRL § 232(a).

Turning next to DRL § 232(b), upon review of the Affidavit of Service, it provides that the affiant had knowledge of Defendant's identity noting, "My knowledge of the Defendant and how I acquired it are as follows: I asked the person served if he was the person named in the papers being served and Defendant admitted being the person named." However, the Affidavit of Service failed to state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the Defendant, as it merely indicates: "I served the following documents, personally upon the Defendant: Summons with Notice, Notice of Entry of Automatic Orders and Notice of Guideline Maintenance."

This Court must now determine whether strict adherence to the requirement of DRL § 236(b) is mandatory, or if this Court may exercise discretion and overlook the failure to include certain information within the Affidavit of Service. The Court of Appeals has provided useful guidance with respect to the way courts are to interpret statutes:

" 'It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature' (Patrolmen's Benevolent Assn. v. City of New York, 41 NY2d 205, 208 [391 N.Y.S.2d 544, 359 N.E.2d 1338 (1976)]; see also, Longines-Wittnauer v. Barnes & Reinecke, 15 NY2d 443, 453 [261 N.Y.S.2d 8, 209 N.E.2d 68 (1965)]). As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. As we have stated: 'In construing statutes, it is a well-established rule that resort must be had to **410 the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning' (Tompkins v. Hunter, 149 NY 117, 122—123 [43 N.E. 532 (1896)]; see also, Matter of Raritan Dev. Corp. v. Silva, 91 NY2d 98 [667 N.Y.S.2d 327, 689 N.E.2d 1373 (1997)])" (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]).

In examining the words employed by the Legislature in the applicable statute, DRL § 236(b) includes the following relevant language, "An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant [emphasis added]." "In the absence of contrary legislative intent or any qualifying language in the statute, the word "shall" is deemed to be mandatory" (Saunders v. Smith, 99 AD2d 671 [4th Dept 1984]; see also, 97 NY Jur. 2d Statutes § 17). As the Legislature included the word "shall" in DRL § 232(b) and this Court cannot locate any contrary legislative intent or any qualifying language in the statute, this Court determines that the word "shall" was intended by the Legislature to be a mandatory requirement, for which this Court has no discretion to overlook. Accordingly, this Court determines the Affidavit of Service to have not met the requirements of DRL § 236(b) and therefore Plaintiff may not be awarded a judgement due to the asserted default of Defendant.

Based upon the foregoing, Plaintiff's motion is denied without prejudice.

Accordingly, it is hereby:

ORDERED that Plaintiff's motion is denied without prejudice; and it is further

ORDERED that by December 10, 2025, Plaintiff's counsel shall serve a copy of this Decision and Order with Notice of Entry on Defendant by overnight traceable delivery and by that date shall file proof of service with the Court; and it is further

ORDERED that any relief requested not expressly granted herein is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: December 4, 2025

White Plains, New York

Hon. James L. Hyer, J.S.C.

FOOTNOTES

1.    See, NYSCEF Doc. No. 1.

2.    See, NYSCEF Doc. No. 2.

3.    See, NYSCEF Doc. Nos. 3-12.

4.    See, NYSCEF Doc. Nos. 13-15.

James L. Hyer, J.