You are here: / / PETITIONER HAD THE BURDEN TO PROVE RESPONDENT WAS SERVED; THE SUPPORT MAGISTRATE...
,

PETITIONER HAD THE BURDEN TO PROVE RESPONDENT WAS SERVED; THE SUPPORT MAGISTRATE REVERSED THE BURDEN OF PROOF; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, ordering a new hearing, determined the Support Magistrate did not apply the correct standard to whether respondent (father) was served with the petition seeking an order of filiation and child support. The burden of proof of proper service was on mother:

The Support Magistrate did not apply the correct standard in weighing the evidence adduced at the hearing. “It is well established that it is the plaintiff [or the petitioner] who bears the ultimate burden of proving by preponderating evidence that jurisdiction over the defendant [or the respondent] was obtained” … . The plaintiff or the petitioner may sustain that burden, inter alia, by introducing the affidavit of service and the testimony of the process server, or evidence demonstrating that the process server is unavailable or that diligent efforts were made to locate the process server to no avail … . Here, the mother, as the party who commenced this proceeding, was the party who bore the burden of proving that jurisdiction was obtained over the father. At the conclusion of the hearing, however, the Support Magistrate denied that branch of the father’s motion which was pursuant to CPLR 5015(a)(4) to vacate the order of support, finding that he failed to credibly meet his burden of proving that he was not served with the petition … . Matter of Kathleen T.K. v Eric C.S., 2020 NY Slip Op 02266, Second Dept 4-9-20

 

You might also like
There Can Be More than One Proximate Cause of an Accident—Plaintiff, to Prevail On a Motion for Summary Judgment, Must Demonstrate Both Defendant’s Negligence as a Matter of Law and Plaintiff’s Freedom from Comparative Fault
IN THIS CHILD VICTIMS ACT LAWSUIT ALLEGING PLAINTIFF WAS ABUSED BY A SCHOOL JANITOR, THE SOCIAL SERVICES LAW 413 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THE JANITOR WAS NOT “A PERSON LEGALLY RESPONSIBLE” FOR PLAINTIFF’S CARE; THEREFORE THE SCHOOL HAD NO DUTY TO REPORT THE ABUSE PURSUANT TO THE SOCIAL SERVICES LAW (SECOND DEPT).
FATHER’S PETITIONS FOR A MODIFICATION OF CUSTODY RAISED FACTUAL QUESTIONS REQUIRING A HEARING; MATTER REMITTED (SECOND DEPT).
FAMILY COURT SHOULD HAVE HELD A HEARING ON PLAINTIFF’S MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT AND DEFENDANT’S PETITION TO REDUCE THE CHILD SUPPORT PAYMENTS; FAMILY COURT HAD GRANTED DEFENDANT’S PETITION AND DENIED PLAINTIFF’S MOTION WITHOUT HOLDING A HEARING (SECOND DEPT). ​
Criteria for Setting Aside a Verdict As a Matter of Law and Setting Aside a Verdict As Against the Weight of the Evidence Explained
Questions of Fact Raised About Whether Ambulance Driver Was Engaged in an Emergency Operation at the Time of the Accident, and If So, Whether the Ambulance Driver Was Reckless in Violation of Vehicle and Traffic Law 1104
Proof Submitted in Reply Papers Not Considered
POSSIBLE CONFUSION ABOUT WHICH MICHAEL YACUBICH AT THE SAME ADDRESS WAS THE “MIKE YACUBICH” SEEKING TO BE PLACED ON THE BALLOT FOR ASSEMBLY WAS NOT A PROPER GROUND FOR INVALIDATING THE DESIGNATING PETITION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FAMILY COURT SHOULD HAVE REOPENED THE NEGLECT HEARING WHEN MOTHER ARRIVED AT... EVIDENCE OF DOMESTIC VIOLENCE AND MARIJUANA USE WAS NOT SUFFICIENT TO FIND THAT...