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WHERE A PARTY IS REPRESENTED BY COUNSEL, THE FAMILY COURT ACT TIME-LIMIT FOR OBJECTING TO AN ORDER BEGINS TO RUN WHEN THE ATTORNEY, NOT THE PARTY, IS NOTIFIED OF THE ORDER.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined the Family Court Act time-limit for objecting to a support order begins to run when the party’s counsel, not the party, is notified of the order. Here the party was notified of the order by mail, but counsel was not. The objections to the order were filed more than 35 days after the order was mailed to the party and were rejected on that ground. The Court of Appeals held that, even if a statutory time-limit for service is silent about the issue, where a party is represented by counsel, the time-limit does not start to run until counsel is notified:

“[O]nce a party chooses to be represented by counsel in an action or proceeding, whether administrative or judicial, the attorney is deemed to act as his agent in all respects relevant to the proceeding. Thus any documents, particularly those purporting to have legal effect on the proceeding, should be served on the attorney the party has chosen to handle the matter on his behalf” (Bianca, 43 NY2d at 173). Indeed, “[t]his is not simply a matter of courtesy and fairness; it is the traditional and accepted practice which has been all but universally codified” (id.). In particular, as the Court noted, CPLR 2103 (b) provides that “[e]xcept where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party’s attorney.”

Bianca governs here. The reference to the mailing of the order to a “party or parties” in Family Court Act § 439 (e) must be read to require that the order be mailed to the party’s counsel, in order for the statutory time requirement to commence. Matter of Odunbaku v Odunbaku, 2016 NY Slip Op 07705, CtApp 11-17-16

 

FAMILY LAW (WHERE A PARTY IS REPRESENTED BY COUNSEL, THE FAMILY COURT ACT TIME-LIMIT FOR OBJECTING TO AN ORDER BEGINS TO RUN WHEN THE ATTORNEY, NOT THE PARTY, IS NOTIFIED OF THE ORDER)/CIVIL PROCEDURE (FAMILY COURT ACT, WHERE A PARTY IS REPRESENTED BY COUNSEL, THE FAMILY COURT ACT TIME-LIMIT FOR OBJECTING TO AN ORDER BEGINS TO RUN WHEN THE ATTORNEY, NOT THE PARTY, IS NOTIFIED OF THE ORDER)

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