IN RE: Lawrence Worner (2013)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Lawrence Worner, respondent, v. Susan Gavin, appellant.

2012–03105 (Docket No. F–04525–01 /11)

Decided: December 26, 2013

WILLIAM F. MASTRO, J.P. PLUMMER E. LOTT LEONARD B. AUSTIN SHERI S. ROMAN, JJ.

Susan Gavin, Cornwall–On–Hudson, N.Y., appellant pro se. Family Court Act § 439(e) provides that a party filing objections must serve those objections upon the opposing party, and that proof of service must be filed with the court at the time that the party's objections are filed.   Here, the record indicates that, on January 19, 2012, the mother timely filed objections to the child support order dated December 5, 2011, which was mailed to the parties on December 15, 2011, and served a copy of those objections upon the father, but failed to file proof of service of the objections at the time of the filing, as required by Family Court Act § 439(e).   However, the mother, who was proceeding pro se, received a letter from the court dated January 19, 2012, the same day she filed her objections, informing her that she had failed to submit proof of service of her objections, and stating that she had two weeks within which to correct the defect and submit the appropriate documentation.   The mother then filed proof of service with the court six days later.   Moreover, the affidavit of service filed by the mother indicates that the father was served with a copy of her objections within the statutory 35–day period (see Family Court Act § 439[e] ), and the father filed a rebuttal to the mother's objections.   Under the particular circumstances of this case, the Family Court should not have denied the mother's objections on the ground that they were untimely (see CPLR 2001;  Matter of Nash v Yablon–Nash, 106 AD3d 740, 741;  Matter of Perez v Villamil, 19 AD3d 501, 501–502;  Matter of Corcoran v Stuart, 215 A.D.2d 340;  see also Matter of Ogborn v Hilts, 262 A.D.2d 857).