In the Matter of GANIYU ADEBOLA ODUNBAKU, Respondent, v DIANA ODUNBAKU, Appellant. (And Another Proceeding.)
Court of Appeals of the State of New York
Argued October 20, 2016; decided November 17, 2016
28 N.Y.3d 223 | 66 N.E.3d 669 | 43 N.Y.S.3d 799
Morrison & Foerster LLP, Washington, D.C. (Joseph Palmore and Marc A. Hearron of counsel), Morrisson & Foerster LLP, New York City (Grant J. Esposito, Daniel Matz-Brown, Lauren M. Gambier and Joshua R. Stein of counsel), and Nancy Goodhill, Staten Island Legal Services, Staten Island (Shelly Agarwala of counsel), for appellant.
Simpson Thacher & Bartlett LLP, New York City (Joseph M. McLaughlin, Jillian de Chavez-Lau and Michael P. Waks of counsel), for Sanctuary for Families and others, amici curiae.
OPINION OF THE COURT
FAHEY, J.
We apply our precedent in Matter of Bianca v Frank (43 NY2d 168 [1977]) to
Diana Odunbaku (the mother) retained Staten Island Legal Services to represent her in her efforts to obtain child support from Ganiyu Adebola Odunbaku (the father), with whom she
The father paid $7,000, but subsequently petitioned Family Court once again for a downward modification. The mother cross-petitioned for a finding that the father was, again, in willful violation of the support order. This time, the father supplied documentary evidence of his inability to pay, including evidence that he had been receiving Social Security Disability benefits following an accident. A different support magistrate granted the father‘s petition and modified the support order, significantly reducing the father‘s child support obligation, to $25 per month. The Support Magistrate‘s order, dated July 24, 2013, contained a notice, in accordance with
On the same day, the Clerk of Family Court mailed the orders and accompanying findings of fact directly to the father and to the mother. Family Court did not mail the documents to the father‘s lawyer or the mother‘s lawyer, nor did the court have an electronic filing system or other means whereby counsel could learn of developments in the case. It was not until the following month that the mother notified her attorney that she had received court papers pertaining to her case. Counsel went to Family Court‘s record room to retrieve the orders and findings of fact, but was not immediately given all of the papers.
On September 3, 2013—41 days after the orders were mailed by Family Court—the mother, through counsel, filed objections.
Family Court relied on
“[s]pecific written objections to a final order of a support magistrate may be filed by either party with the court within thirty days after receipt of the order in court or by personal service, or, if the objecting party or parties did not receive the order in court or by personal service, thirty-five days after mailing of the order to such party or parties” (emphasis added).
The objections had been filed more than 35 days after Family Court mailed the orders to the mother. Family Court further ruled that “the mailing of a copy of the order and findings of fact to a party of the proceedings satisfies the requirements of . . . § 439(e) and
The mother moved to reargue. Family Court adhered to its prior ruling. The mother appealed from the Support Magistrate‘s orders and findings of fact, as well as from Family Court‘s order denying her objections and its order upon reargument. She relied on our decision in Matter of Bianca v Frank (43 NY2d 168 [1977]).
The Appellate Division affirmed Family Court‘s order upon reargument and dismissed the mother‘s appeals from the other orders (see Matter of Odunbaku v Odunbaku, 131 AD3d 617 [2d Dept 2015]). The Appellate Division did not cite Bianca. Instead, the Court relied on
We granted the mother leave to appeal (26 NY3d 913 [2015]) and now reverse.
Matter of Bianca v Frank is dispositive. There, we held that “basic procedural dictates and . . . fundamental policy
Bianca interpreted a statute of limitations in a county administrative code, which stated that “[a] petition to review a determination by the commissioner to . . . discipline a member of the police force shall not be granted after the expiration of thirty days from the service of a notice of such determination upon the member of the force so . . . disciplined” (id.), to require that notice be served upon the member‘s attorney. Although the petitioner himself had been served with the determination, petitioner‘s attorney had not been served with it, and so the Court held that the statute of limitations had not commenced. Subsequently, we extended the Bianca principle so as to apply to representation by a union (see Matter of Case v Monroe Community Coll., 89 NY2d 438, 442 [1997], mot to amend denied 89 NY2d 1081 [1997], rearg denied 89 NY2d 1087 [1997] [holding that a grievant is deemed to have been served with an award once service is properly effected on his or her designated agent, whether an attorney or not]).
The rationale of Bianca is straightforward.
“[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
Bianca governs here. The reference to the mailing of the order to a “party or parties” in
For his part, the father contends that
Significantly,
The father also contends that application of the Bianca rule is burdensome. The burden on Family Court is minimal.
Notably, mailing court orders to the parties without also mailing the orders to their attorneys impairs effective access to justice on the part of vulnerable individuals and undermines their representation. Indeed, the practice deprives the party of some of the principal benefits of being represented by an attorney.
There is no need for us to consider the mother‘s alternative arguments, given our ruling.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, without costs, and the matters remitted to Family Court for further proceedings in accordance with this opinion.
Judges PIGOTT, RIVERA, ABDUS-SALAAM, STEIN and GARCIA concur; Chief Judge DiFIORE taking no part.
Order, insofar as appealed from, reversed, without costs, and matters remitted to Family Court, Richmond County, for further proceedings in accordance with the opinion herein.