IN RE: Hanan A. Tanash (2011)

Submitted—March 11, 2011

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Kennedy, J.), dated June 9, 2010, which dismissed the petition, without prejudice, on the ground that proof of service was defective.

ORDERED that the order is affirmed, without costs or disbursements.

The mother correctly contends that the Family Court, Kings County, has subject matter jurisdiction over this custody proceeding (see Domestic Relations Law § 76[1][a];  Matter of Felty v. Felty, 66 AD3d 64, 70).   However, the Family Court properly dismissed the petition on the ground that proof of service was defective.   While the mother does not dispute that the affidavit of service contained a defect, she contends that the defect could have been cured.   Indeed, “[a]n improperly executed affidavit of service is a mere irregularity and not a jurisdictional defect [and] ‘[t]he crucial question is whether or not [the party being served] was in fact served with process' ” (Mendez v. Kyung Yoo, 23 AD3d 354, 355–356, quoting Mrwick v. Mrwick, 49 A.D.2d 750, 751).   Here, however, the mother presented no additional proof to demonstrate the validity of the affidavit of service, or to show that the father was in fact served.   She merely submitted to the Family Court the same affidavit of service which had previously been found insufficient.   Therefore, the Family Court properly dismissed the petition without prejudice.

MASTRO, J.P., DILLON, BALKIN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court