JUDGE JUDITH GISCHE - SEE EX-JUDGE MICHAEL GARSON, DISGRACED AND JAILED SUPREME COURT JUSTICE GERALD GARSON'S COUSIN

The System Is the Crime
By Jesse Sunenblick
Posted 09-29-06
JUDICIAL REPORTS

Litigators sure seem to think the world of Judge Judith Gische — even those whom she's ruled against. The problem is that New York state's wretched judicial election system can make even a luminary of the bench appear to be conflicted.
Even if a judge is putatively brilliant, the particulars of his or her excellence can be overshadowed by surrounding failures that are essentially systemic. Witness Judith Gische, the Manhattan judge known for presiding over Rudolph Giuliani’s divorce case.By various accounts Gische, 50, is “just plain smart,” “understanding of the issues,” “rational,” “caring of her job,” and “engaged and prepared and very thoughtful.” “Practically every member of the matrimonial bar has appeared before Judith Gische,” said Raoul Lionel Felder, the divorce attorney for Giuliani. The former mayor was ordered in 2002 by Gische to pay his ex-wife, Donna Hanover, more than $6 million (plus yield their upper East Side apartment.) The settlement came after 18 months of courtroom acrimony.Yet notwithstanding that outcome, Felder, now the chair of the state Commission on Judicial Conduct, contributed $3,000 to Gische’s uncontested run for Civil Court in 2003, according to state Board of Elections records. The donation equaled the biggest among the more than $61,000 in contributions that Gische raised. According to binding rules set by the Office of Court Administration’s Judicial Campaign Ethics Center, judges should not learn who their donors are. But judges are also prohibited from taking contributions from parties who “may reasonably be expected to come before the candidate if elected” or parties who “have come before the candidate so recently that it manifests an appearance of impropriety.”Which raises a tidy little question: How are judges supposed to prevent courtroom appearances by donors whose identities they’re not supposed to know in the first place?“I would say that there is no statute or promulgated rule that prohibits a judge or a judicial candidate from knowing his or her contributors,” said Robert Tembeckjian, administrator and counsel for the judicial conduct commission. “This is a practice based on an advisory opinion from the state bar association from the 1970’s.”In reality, said Hofstra University School of Law ethics professor Monroe Freedman, “whoever is close enough to the judge to be handling the campaign and the financing is very likely to let the judge know. And the lawyers are likely to let the judge know, more or less subtly, that they have helped out. I don’t trust this kind of system. Some people might say I’m a cynic, some might say I’m a realist.”Referring to Felder’s contribution, Gische’s treasurer, attorney David B. Karel, said, “Judges don’t know who’s contributing to their campaigns. I never told her who contributed how much money. I think there are some attorneys who have such a belief in the judicial system that they feel the money is well spent. It’s commendable that somebody would make a large contribution to a candidate, despite the fact that the candidate will not know who contributed to their campaign.”When asked if she knew the identities of any of her donors — many of them matrimonial attorneys — Gische was emphatic. “I can’t, I wouldn’t, and I don’t. I’ve raised money, and I have an independent treasurer. But it’s a blind process. I’m not supposed to know, and I don’t know.”In fact, at least three of Gische's donors with contributions listed at the board of elections litigated before her shortly before or after she won reelection. The appearance by Allen Mayefsky (who gave $250) was confirmed by a staff member at his office. The appearances by the other two, Bernard E. Clair ($500) and Joel B. Mayer ($150), are on record at the New York County Supreme Court’s Trial Support Office.But is this an impropriety, or an absurd contradiction within the system?“If not lawyers, then who would contribute to campaigns?” said Gische. “I don’t think the general voting public would be making contributions to judicial elections.”In terms of jurisprudence, Gische garnered a reputation for independent-minded diligence in the Matrimonial Part, where she sat from 1997 until 2005.A cauldron of emotions — and, in Manhattan, media attention — the Matrimonial Part often produces decisions in heavily contested custody cases that revolve around “expert” reports on the parties and the children prepared by forensic psychiatrists.
“In the past, judges have rubber-stamped these reports too much,” said Donald Frank, a matrimonial lawyer at Blank Rome with more than 35 years of experience. “It used to be that whatever the forensic said, a judge did. I think Gische understood that whatever is said is not empirical or scientific. I think she did a good job making up her own mind, not abdicating her ultimate role by what the experts say.” In the cases Frank tried before Gische, he said, “she had keen insight into the parties, and what the dynamics were in the marriage. Let’s face it: The Matrimonial Part is not the easiest court to sit in day after day, year after year. . . but lawyers have always enjoyed appearing before her. They always felt they were being accorded respect and listened to.”Raised in Bayside, Queens, Gische grew up in a “pretty working class” neighborhood. “My parents had middle class values,” she said. “They were very pro-education.” Her father worked as a cutter and factory foreman in the garment business, and at one point had his own custom blinds business, while Gische’s mother was a bookkeeper. Gische received her undergraduate degree and law degree from the State University of New York at Buffalo. She then spent two years as a clerk at the Appellate Division, Third Department, and eight years after that at Richenthal, Abrams & Moss, a firm that specialized in real estate and commercial matters. In 1990, Gische responded to an advertisement in the New York Law Journal seeking nominees for Housing Court judgeships. She submitted an application and ultimately was appointed, after successfully navigating bar association and various screening panels and getting the nod from Deputy Supervising Judge Fern Fisher. “Doesn’t every lawyer want to be a judge?” Gische said, with the kind of humility admirers often point out. “I thought it was a good career move, but I was very uncertain my application would go anywhere.”In 1993, Gische was elected to Civil Court in Manhattan, but four years later Administrative Judge Jacqueline Silbermann offered a promotion, asking Gische to help organize the Bronx Civil Term’s Matrimonial Part, which was lagging administratively. Thus began an eight-year tenure as an Acting Supreme Court Justice handling matrimonial cases.After she learned she would face no opponent in 2003, Gische filed papers to campaign for the Supreme Court. She became eligible after being approved twice within four years by the Democratic Party’s screening panel.But she withdrew her name from consideration shortly before the party’s convention when it became clear, according to her consultant, Jerry Skurnik, that among district leaders “she was nobody’s first choice” for the two vacancies in Manhattan.If politics prevented an excellent judge from moving up the career ladder, in many ways Gische’s move to the General IAS Part is a return to what she knows best. Asked if the move required any brushing up on procedure, Gische said, “Everything. I’m always learning. A lot of labor law accident cases, I’ve had to learn that. And insurance cases. I’m always looking at the law.”As for pet peeves, Gische described herself as a time freak. “I like timeliness. It shows consideration for other people who are part of the trial process. Particularly when you have a jury.”Since her move to IAS, Gische has garnered praise for her handling of other cases. In Gherghinoiu v. ATCO Properties and Management Inc., which revolved around an issue of “special employment” in a worker’s compensation case, Gische denied defendant’s attorney Gail Ritzert’s motion to dismiss.
Yet Ritzert offered praise: “She was prepared. Every time we went before her — motions or conferences — she was familiar with the case and background. She did her homework.”In a recent civil rights case in which an Orthodox Jew sued California photographer Philip Lorca diCorcia for taking his picture without permission and then hanging it in a gallery, Gische impressed diCorcia’s attorney, Los Angeles corporate litigator Lawrence Barth. “It was a motion for summary judgment, and she gave us about an hour to argue, which I thought was generous. She was interested and engaged, and had obviously read the briefs thoroughly.”“It was a fascinating case,” said Gische. “The balancing of what constitutes privacy, which is important in our society, and the First Amendment rights of artists is a delicate balance. You don’t often have cases that bring issues like that together that frame the fabric of our society, define who we are as a society. I think the proof of this was, there wasn’t a lot of case law out there for me to depend upon and reach a conclusion in this issue.”On a more controversial note, in 2003, the New York Daily News and New York Law Journal reported on Gische’s role in overseeing the initial guardianship hearing that ultimately led to a scandal involving Brooklyn Supreme Court Justice Michael Garson. (His brother Gerald, who faces bribery charges in an unrelated case, said this week that he would not take a plea deal.) Currently suspended with pay, Michael Garson stands accused of using his power-of-attorney on behalf of his elderly aunt, Sarah Gershenoff, to steal hundreds of thousands of dollars from her. Gische presided over one part of the dispute and approved a settlement that the Law Journal described as “apparently favorable to the Garson wing.”Equally at issue, however, was Gische’s decisions to seal the court record and refrain from reporting Garson’s alleged wrongdoing to the judicial conduct commission.“If she’s a judge, she’s an officer of the law,” said Freedman, the Hofstra ethics professor. “She became aware in the course of a proceeding that there was at the very least a strong appearance of felonious conduct, certainly unethical conduct, and . . . at the very least she should not have covered it up by sealing the record and not having it investigated by a prosecutor or a judicial ethics body.”“That’s an opinion I’d expect from a professor,” said attorney Robert Kruger, whom Gische appointed to the role of financial guardian in the case. “In the practical world, people’s behavior can depart from the norm or a professor’s notion of what the norm should be. A professor is in a cocoon. I think their opinions are worthless.”In fact, Gische said, her main responsibility was to decide whether Ms. Gershenoff needed a guardian and then to appoint an independent party to serve that role, whose responsibility it was to investigate any claims Ms. Gershenoff might have had against anybody.“I had had a bunch of squabbling family members who were raising extravagant allegations back and forth,” Gische said. “I hadn’t made any findings, all I had were the allegations. There was nothing at that point that would have risen to the level that would have required me to report something to the Commission on Judicial Conduct.” “If every time somebody raises an allegation I have to send it to some grievance committee, then I would have been sending out all my cases. I think it has to rise to a level of substantial evidence, and we never got that far. I think what I did — I facilitated an investigation of the allegations by somebody independent. Just because I didn’t send it to the [judicial conduct] commission doesn’t mean I didn’t deal with it in a serious way, including not taking no for an answer of Garson’s claim that he couldn’t get the documents.”As for sealing the file, Gische noted that she did do so “by consent of all of the parties, adversarial parties, I might add.” She continued, alluding to the state mental hygiene law that deals with the appointment of guardians for incapacitated people. “In part — and this issue comes to light all the time, in the Brooke Astor case, for example — when you have these Article 81s that involve very sensitive information regarding elderly people with certain medical information, you don’t want to thrust it into the public.” In terms of statistical performance evaluation, Gische can definitely point to good numbers. According to the Office of Court Administration, in 2005 Gische’s backlog stood at 13.6 months — five months under the Manhattan Civil Terms’s average for that time period. Between 2000 and 2005, appellate courts reversed or modified Gische 16 times. Her reversal rate was 26.7 percent, compared to an average of 36.7 for her colleagues in the Manhattan Civil Term.“Honestly, Judith Gische is one of the most extraordinary people I’ve ever known,” said longtime matrimonial attorney Norman Sheresky, a $250 donor to Gische’s 2003 Civil Court campaign whose colleague at Sheresky Aronson & Mayefsky, Allen Mayefsky, was among the donors who appeared before Gische near the time of his own contribution. (Five of the firm’s 11 lawyers donated to Gische’s campaign.)
“I think she cares, really cares, about what’s in front of her,” continued Sheresky. “In fact, she might be the least pre-judgmental judge I’ve ever appeared before. You find good judges everywhere, but the percentage of highly knowledgeable judges is probably less in matrimonial. Everything’s an emergency that has to be handled: The light’s been turned out; the husband took the kids away; I’m about to be evicted . . . there’s one emergency after another.” In the weird interplay between a widely respected judge and the shabby election system that surrounds her, handicapping Sheresky’s sincerity is not easy. But he provided at least one anecdote that transcended the obsequious. “I’ll never forget,” he said. “I had a trial in front of her. Just before lunch, I objected to some testimony — I said it was confidential communications between husband and wife, under the New York statute, one of the finer points of matrimonial law. I don’t think she’d been in the part more than a couple of weeks. And she said, ‘Oh, let me look at that over lunch.’ She came back and she said, ‘You know, Mr. Sharesky, that was really interesting. Your motion is denied.’ She knew the statute perfectly by the end of lunch.”

JUDGE AMODEO - VICTIM # 1

Why Parents Who Batter Win Custody
by Sarah Childress
Newsweek 2006

It took six years for Genia Shockome to gather the courage to leave her husband, Tim. He pushed her, kicked her and insulted her almost from the moment they married in 1994, she says. She tried to start over with their children when the family moved from Texas to Poughkeepsie, N.Y. It didn't last long. Tim called her constantly at work and, after they split up, pounded on her door and screamed obscenities, she alleged in a complaint filed in 2001. Tim was charged with harassment. As part of a plea deal, Tim agreed to a stay-away orderâ014but denies ever abusing her or the children. In custody hearings over the past six years, Tim has insisted that he's been a good father, and argued that Genia's allegations poisoned their children against him. The judge sided with Tim. This summer he was granted full custody of the kids, now 11 and 9. Genia was barred from contacting them.Genia is one of many parents nationwide who have lost custody due to a controversial concept known as parental alienation. Under the theory, children fear or reject one parent because they have been corrupted or coached to lie by the other. Parental alienation is now the leading defense for parents accused of abuse in custody cases, according to domestic-violence advocates. And it's working. The few current studies done on the subject consider only small samples. But according to one 2004 survey in Massachusetts by Harvard's Jay Silverman, 54 percent of custody cases involving documented spousal abuse were decided in favor of the alleged batterers. Parental alienation was used as an argument in nearly every case.This year the National Council of Juvenile and Family Court Judges denounced the theory as "junk science," and at least four states have passed legislation to curtail its use in custody cases involving allegations of domestic violence. "It's really been a cancer in the family courts," says Richard Ducote, an attorney in Pittsburgh who has represented abuse victims in custody cases for 22 years. "It's made it really difficult for parents to protect their kids. If you ask for protection, you're deemed a vindictive, alienating parent."
\u003cbr /\>It may seem hard to fathom how a judge could award custody to a parent accused of abuse. But battered spouses often don\'t file criminal chargesâ014so no judicial finding is made against their matesâ014and family-court judges typically aren\'t trained to referee the complexities of abusive relationships. (Although men are sometimes battered by their wives, women are the victims in the majority of abuse cases.) Judges often throw out documented evidence of spousal abuse, arguing that it is irrelevant in a custody case. And experts say that family-court judges often look favorably on the alleged abuser because he seems more willing to share custody than the accuserâ014who is hellbent on keeping the father away from the child. According to a survey by Geraldine Stahly, a psychology professor at California State University at San Bernardino, attorneys will caution battered spouses against reporting abuse in court so they don\'t lose their children. (Stahly and other academics say the parental-alienation argument has more legitimacy in custody disputes that don\'t involve charges of abuse.)\u003cbr /\>\u003cbr /\>Parental-alienation syndrome was first introduced by child psychiatrist Richard Gardner in the 1980s. Fathers-rights groups picked up on the idea and began trying it out in court. These groups condemn abusers. But Dan Hogan, executive director of Fathers & Families, a nonprofit group that advocates for joint custody, argues that all too often the accusers lie in order to win custody of their kids.\u003cbr /\>\u003cbr /\>\u003cbr /\>There\'s a small but growing movement to ban parental alienation in custody cases, sparked by embattled parents bonding online. They\'ve linked with lawyers and advocates for battered spouses across the country. At least four states, including California, have laws protecting parents who make good-faith abuse allegations. Others may soon follow their lead. Greg Jacob, an attorney who takes cases for abused parents pro bono, is drafting legislation to shop to Virginia and Maryland next month. Meanwhile, parents like Genia keep fighting. "It\'s so hard, having my children lost," she says, her voice breaking. "This was my lifeâ014my children."\u003cbr /\>\u003cbr /\>\u003cbr /\>Copyright © 2006 Newsweek\u003cbr /\>\u003cbr /\>Sent from my BlackBerry wireless handheld.\u003c/div\>",0]
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It may seem hard to fathom how a judge could award custody to a parent accused of abuse. But battered spouses often don't file criminal chargesâ014so no judicial finding is made against their matesâ014and family-court judges typically aren't trained to referee the complexities of abusive relationships. (Although men are sometimes battered by their wives, women are the victims in the majority of abuse cases.) Judges often throw out documented evidence of spousal abuse, arguing that it is irrelevant in a custody case. And experts say that family-court judges often look favorably on the alleged abuser because he seems more willing to share custody than the accuserâ014who is hellbent on keeping the father away from the child. According to a survey by Geraldine Stahly, a psychology professor at California State University at San Bernardino, attorneys will caution battered spouses against reporting abuse in court so they don't lose their children. (Stahly and other academics say the parental-alienation argument has more legitimacy in custody disputes that don't involve charges of abuse.)Parental-alienation syndrome was first introduced by child psychiatrist Richard Gardner in the 1980s. Fathers-rights groups picked up on the idea and began trying it out in court. These groups condemn abusers. But Dan Hogan, executive director of Fathers & Families, a nonprofit group that advocates for joint custody, argues that all too often the accusers lie in order to win custody of their kids.There's a small but growing movement to ban parental alienation in custody cases, sparked by embattled parents bonding online. They've linked with lawyers and advocates for battered spouses across the country. At least four states, including California, have laws protecting parents who make good-faith abuse allegations. Others may soon follow their lead. Greg Jacob, an attorney who takes cases for abused parents pro bono, is drafting legislation to shop to Virginia and Maryland next month. Meanwhile, parents like Genia keep fighting. "It's so hard, having my children lost," she says, her voice breaking. "This was my lifeâ014my children."

Copyright © 2006 Newsweek

JUDGE AMODEO APPOINTED CRIMINAL VIOLA STROUD

RE: JUDGE AMODEO APPOINTED CRIMINAL VIOLA STROUD
TO SUPERVISE GENIA SHOCKOME.

Saturday, December 11, 2004

Children's supervisor shown sleeping on job
Gannett News Service

A videotape played in Dutchess County court Friday showed a court-appointed supervisor apparently sleeping while she was supposed to be overseeing a visit in Poughkeepsie between two children and their estranged mother. The tape, made by the children's mother, showed Viola Stroud of Mahopac sitting motionless on a couch, her eyes closed and her face tilted forward, as the children played a noisy game of air hockey several feet away. Later, Stroud is seen telling the mother to ''shut that off'' and hiding her face behind a handful of papers. She also demanded that the woman, Yevgenia Shockome, turn over the camera and the tape, and threatened to ''call the authorities.'' ''You're breaking the rules. Please don't take my picture,'' Stroud said. Stroud runs an organization called Little Angels Supervised Visitation, which provides court-ordered oversight of children and non-custodial parents accused of domestic violence, drug abuse or other problems. The private agency has received appointments in Westchester, Putnam and Dutchess counties. Checks written to self Stroud has also served as a court-appointed guardian for mentally incapacitated adults and, in September, published reports said she wrote tens of thousands of dollars in checks to herself, to ''cash'' and to Little Angels after she was given control over the finances of three Putnam women. Last month, the Putnam district attorney confirmed a criminal investigation of Stroud after a state judge ordered her to repay more than $30,000 to a Mahopac woman who suffered blindness and brain damage after a car crash. Stroud, 61, was not present in the courtroom Friday and did not return a telephone message left at her home. Her lawyer, Ronald Levine of Poughkeepsie, was not in his office late yesterday afternoon and did not return a message left with a receptionist. Shockome, who is involved in a bitter, four-year divorce case, said she made the tape at her Poughkeepsie condominium on Aug. 28. Shockome, 32, said her visitation rights were canceled afterward. Shockome said Stroud routinely slept during more than 20 previous supervised visits between Shockome and her children, whose father has sole custody. ''I liked it, because when she was sleeping I had more private time with my kids,'' Shockome said. At an Aug. 31 court hearing, Stroud denied sleeping during any of the visits, Shockome said. Dutchess County Family Court Judge Damian J. Amodeo, who appointed Stroud to Shockome's case and presided over Friday's hearing, did not comment on the content of the hourlong tape

NY TIMES - 1100 CASES FROM JAILED SUPREME COURT JUSTICE GARSON

NY TIMES


October 12, 2004, Tuesday


By LESLIE EATON (NYT); Metropolitan Desk
“DISPLAYING ABSTRACT -

State Supreme Court Justice Gerald P Garson, former Brooklyn matrimonial judge, has pleaded not guilty to bribery charges and is awaiting trial; court officials say Garson granted over 1,100 divorces in his five years on bench; there has been no wholesale re-examination of Garson's cases; Administrative Judge Jacqueline W Silbermann has reopened only three of those cases so far; even in cases that involved Garson and Paul Siminovsky, lawyer who testified that he paid off Garson, rulings have not necessarily been scrutinized or overturned…”

MISGUIDED BLACK ROBE - Supreme Court Justice Jacqueline Silbermann ordered the release of the prisoners/ crimes - the rape,sodomy of boys & girls

'Dirty Dozen' Sex Fiends Will Stay in Custody — for Now
The Associated Press New York PostNovember 18, 2005

ALBANY — A dozen sex criminals who won their conditional release in court after being ordered held in a psychiatric hospital by Gov. Pataki will instead remain in custody as the state appeals the court decision, the governor said Friday.
State Supreme Court Justice Jacqueline Silbermann on Tuesday ordered the release of the prisoners — whose crimes include the rape and sodomy of boys and girls — pending examinations of each inmate by two court-appointed psychiatrists. Pataki appealed that decision Friday, leading to a temporary stay on the judge’s order, Pataki’s office said.
The convicted sex offenders had been ordered held by Pataki. After years of failing to secure a law that would allow civil confinement of some sex offenders when their sentences end, Pataki decided to “push the envelope” of the law by ordering them held in a psychiatric hospital. Pataki used the state’s involuntary commitment law, which normally deals with the non-criminal mentally ill, to win extended confinement of the sex offenders.
Lawyers for the prisoners petitioned the court for their release, arguing their clients’ detentions were illegal because the state violated the law that governs the transfer of apparently mentally ill prisoners to hospitals.
“We feel very strongly that the state has to comply with the corrections law, which it simply didn’t do,” said Stephen Harkavy, deputy director of Mental Health Legal Services. He represented the 12 defendants. Harkavy said he will try to get the stay lifted by an appellate court.
The case will probably be argued early next week, he said. From there it could be appealed to the state’s highest court, and it could take months for the Court of Appeals to rule.
Pataki asserted he acted within his legal rights. “I’m going to do everything in my power as governor to keep these predators, when it’s appropriate and when it’s legally permissible, away from our children and away from society,” Pataki said during a TV appearance.
“I have no doubt I have the legal authority to take the steps I have taken.”
Richard Hamill, president of the New York State Alliance of Sex Offender Service Providers, said there are some offenders who are too dangerous for society, but civil commitment is “hugely expensive” and affects only a tiny fraction of pedophiles, rapists and other sex criminals.
“If you put 400 offenders in civil commitment, you’ve really addressed less than 2 percent of the registered sex offenders out there,” he said. “And there are probably 10 offenders out there for every one that has been arrested and registered. It’s not a potent way to make the community a lot safer.”
Hamill said lifetime probation is one idea that has been very effective in reducing the number of offenders who commit crimes after they are released from prison.

JUSTICE SILBERMANN - MISGUIDED BLACK ROBE - NO FAULT, NO CLUE - JUDICIAL REPORTS

LexPress: Divorce Tort


By Jesse SunenblickPosted:08-13-07


The Appellate Division chides a Manhattan Supreme Court Justice's handling of a 2005 divorce. And, on the verge of becoming the longest-tenured chief prosecutor in the borough's history, Queens DA Richard "The Judge" Brown opens up to The Daily News, among other news.


NO FAULT, NO CLUE

The Appellate Division, First Department has chastised Manhattan Supreme Court Justice Jacqueline Silbermann and reversed her ruling in an uncontested 2005 divorce, when she awarded “everything,” according to The New York Post, to the former president of the Village Reform Democratic Club in Manhattan. Susan Gass has said she didn’t even know she was being sued for divorce (her husband, Thomas, claims he served her papers). In its decision, the Appellate Division said Silbermann "abused her discretion" when she ignored Gass's repeated attempts to fight the divorce, which gave child custody and the house to her husband. Silbermann is Administrative Judge of the Manhattan Civil Term and, statewide, Deputy Chief Administrative Judge for Matrimonial Matters.

JUSTICE SILBERMANN ABUSED HER DISCRETION - KUDOS TO THE FIRST DEPARTMENT FOR INCREASING PUBLIC FAITH

Gass v Gass
2007 NY Slip Op 06252
Decided on July 26, 2007
Appellate Division, First Department

Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 26, 2007 Sullivan, J.P., Williams, Gonzalez, Sweeny, Kavanagh, JJ.
183 Index 309697/04


[*1]Thomas Gass, Plaintiff-Respondent, vSusan Gass,

Defendant-Appellant.
Susan Gass, appellant pro se.
Philip Groner, New York, for respondent.

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered August 3, 2005, which, inter alia, denied defendant's motion to vacate a default judgment, reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted with leave to file a late answer within 20 days of service of a copy of this order with notice of entry.
Initially, we find that the motion court properly confirmed the Referee's report, which clearly defined and addressed the issues raised, resolved matters of credibility, and made findings substantiated by the record (see Melnitzky v Uribe, 33 AD3d 373 [2006]). Plaintiff husband proved by a preponderance of the evidence, after a traverse hearing, that his attorney had properly served the wife with a copy of the summons with notice in this divorce action (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006] [declining to disturb hearing court's finding, supported by the record, that process server was more credible than defendant]).
The dissenting Justice accurately relates the facts, but erroneously rejects the credibility determinations made by the referee and confirmed by the motion court. Contrary to the dissent's assertion, neither the court nor the Referee based its credibility findings primarily on the process server's status as an attorney. Instead, the record shows that the Referee made explicit credibility findings for each of the three critical witnesses at the traverse hearing - the wife, the process server/attorney and Ms. Lee - and did so based on an evaluation of the traditional criteria for weighing the credibility of witness testimony.
For instance, the Referee found that the wife's testimony was "not credible" based on her obvious motive to deny being served with process (see NY Pattern Jury Instructions [PJI3d] 1:8 [in weighing testimony, jurors may consider the interest or lack of interest of any witness in the outcome of the case]), and further noted that the wife's two strongest pieces of evidence at the traverse hearing - the ATM receipt mentioned by the majority and Lee's testimony - were both "inconclusive" regarding the pivotal issue of whether service was accomplished.
Similarly, the Referee found Lee's testimony "suspect," asking rhetorically, "How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing?" It was perfectly appropriate for the Referee and the motion court to consider the probability or [*2]improbability of Lee's testimony, when considered in light of all the other evidence in the case (see PJI3d 1:8). In fact, the absurdity of Lee's testimony that she remembered the exact date and time of the wife's appearance at her laundromat six months earlier alone justifies this credibility determination made by the Referee.
Nor did the referee and motion court rely "decisively" on the process server's status as an attorney. Although the Referee certainly did question why "an attorney admitted to practice for over 30 years" would risk his law license by filing a perjurious affidavit of service, the dissent ignores the remainder of the Referee's statement, which points out that engaging in such a desperate falsehood to accomplish service on that particular evening would have been illogical and completely unnecessary, given that the attorney was personally familiar with the wife, lived in close proximity to her, and there was no imminent risk that the statute of limitations would expire if service had not immediately been effected.
In our view, the Referee's statements merely reflect an inquiry into the absence of logical reasons, given the potential risks, of engaging in such misconduct. We agree with his conclusion that the attorney had no discernible motive or logical reason to state falsely that he had properly served the wife, whom he knew personally and who would obviously deny service, since he easily could have accomplished the same result on another occasion.
Nevertheless, under the unique circumstances of this case, the order should be reversed and the default vacated because, apparently unbeknownst to the Referee who granted the default, the wife had appeared and filed a motion seeking affirmative relief in Supreme Court prior to the default being entered.
Although the wife's default in failing to timely answer the complaint is undisputed, the record amply demonstrates that she undertook several actions that should have placed both the court and the husband's counsel on notice that she intended to appear and defend the matrimonial action. First, on September 27, 2004, after allegedly learning of the divorce action for the first time during an appearance in Family Court, the wife served a notice of appearance (which included a demand for a copy of the divorce complaint and all other papers) and a request for judicial intervention on the husband's attorney by regular mail. Significantly, a copy of the wife's notice of appearance in the record includes a stamp stating "RECEIVED OCT 1 - 2004 TRIAL SUPPORT OFFICE." This indicates that Supreme Court, or at least the Trial Support Office of that court, received notice that the wife was appearing in the action on October 1, 2004, which is 11 days before the default judgment was signed.
Second, the record also shows that the husband's attorney received the wife's notice of appearance, as evidenced by his September 30, 2004 "Notice of Rejection," wherein he rejected service of the wife's papers as untimely. The notice of rejection further indicates by stamp that it was received by the Trial Support Office on September 30, 2004, 13 days before the default judgment was signed. These documents indicate that the husband's attorney was obviously aware of the wife's appearance in the action 12 days before the default judgment was signed.
In addition, the record shows that on October 6, 2004, the wife submitted a show cause order to vacate the husband's note of issue in the divorce action. Justice Stackhouse signed the order on October 8, and set a return date of October 18. Thus, four days before the default judgment was signed, the record shows that the wife had made a motion in Supreme Court seeking affirmative relief in the divorce action.
From these facts, it is evident that the court and the husband's attorney were or should [*3]have been aware of the wife's appearance and her request for affirmative relief several days before the default was signed. However, the papers filed by the husband's counsel in support of the default judgment, as well as the judgment itself, strongly indicate that this information was never brought to the attention of the referee who granted the default. Indeed, the husband's attorney's affirmation of regularity states that "[the wife] is in default for failure to serve a notice of appearance in this action in due time, and the time to answer has not been extended by stipulation, court order or otherwise." Further, the divorce judgment itself states that "Defendant has not appeared and is in default."
Although we recognize that the husband's papers in support of the default were prepared and filed before the wife's entry into the case, it remains a mystery to us why the Referee was apparently oblivious to her appearance. Equally puzzling is how a Referee can grant a default judgment in an "uncontested" matrimonial action at the same time a Supreme Court Justice has signed a show cause order, brought by the party allegedly in default, requesting vacatur of the note of issue in that action. If the Referee had been made aware of the wife's entry into the case, it is entirely possible that this default never would have been entered.
We note that in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce or ancillary relief (see Viner v Viner, 291 AD2d 398 [2002]; O'Brien v O'Brien, 149 AD2d 830, 831 [1989]). Accordingly, even assuming that the wife's allegations of a reasonable excuse and meritorious defense were insufficient by themselves to justify the standard for vacatur, under the unusual circumstances of this case, including the wife's pro se status and the fact that the Referee was apparently kept in the dark about her appearance in the case and intent to defend the action, we find that the motion court abused its discretion in refusing to vacate the default (id. at 831-832). We also note that the wife faithfully appeared during all Family Court proceedings and during her prior divorce action, and her motion to vacate her default was made promptly upon its entry.
Finally, our dissenting colleague is mistaken in suggesting that we implicitly find that the wife had perjured herself and suborned perjury. We find no such thing. As our opinion makes clear, we find that the Referee's credibility determinations were supported by the evidence at the traverse hearing, and, to that extent, his finding of proper service must be upheld. Unlike the dissent, we do not believe it is this Court's function to make an independent determination as to who, in fact, perjured themselves at the traverse hearing, and we offer no opinion thereon. Our vacatur ruling is based solely on the unfairness of granting a premature default against an unrepresented party in a matrimonial action. It has nothing to do with indulging any party's alleged misconduct.
All concur except Sullivan, J. who dissents in a memorandum as follows:
SULLIVAN, J. (dissenting) Contrary to the majority's view, this appeal from the denial of defendant-wife's motion to vacate a default judgment of divorce turns solely on the motion court's confirmation of a referee's report, after a traverse hearing, to the extent it determined that the wife had been personally served with a copy of the summons with notice, as indicated in the affidavit of [*4]service [FN1]. Since I believe that the Referee, as a matter of law, improperly assessed the credibility of the process server, who happened to the husband's attorney, I dissent and would reverse the referee's factual determination and grant defendant's motion to vacate the default and dismiss the complaint for lack of personal jurisdiction.
Before turning to the facts adduced at the traverse, some background leading to the challenged service of process is in order. The parties, married in 1987, have one child, a son, born in 1990. An incident in June 2003, in which the wife allegedly, in anger and in the husband's presence, punched the child about the face and body and threw a chair at him, brought the parties to Family Court, which issued a temporary order of protection pursuant to Article 8 of the Family Court Act in favor of the child and the husband. After a hearing, Family Court extended the order of protection and appointed a law guardian for the child. On August 6, 2003, the husband filed a custody petition and, following a hearing held that day, was granted custody of the child with continuation of the order of protection.
The wife thereafter commenced a divorce action in Supreme Court, New York County, seeking, inter alia, custody of the child, which prompted a transfer of the family offense and custody petitions to the Supreme Court for merger with the divorce action. A law guardian appointed for the child recommended that custody remain with the father. At a settlement conference with the Justice presiding, the wife discontinued her divorce action. The husband commenced the instant divorce action the same day - August 3, 2004 - by filing a summons with notice with the New York County Clerk. That night, the husband's attorney allegedly personally served a copy of the summons and notice, together with a copy of the Child Support Standards Act, upon the wife as she was walking near her Prince Street apartment in Soho. The attorney filed an affidavit of service with the New York County Clerk on August 4. The wife never appeared in her husband's divorce action.
The wife claims she first heard of the new divorce action on September 27, 2004, during a Family Court support hearing. On the same date, she filed a Request for Judicial Intervention (RJI) with a request for a preliminary conference, and on October 6, 2004 she filed a show cause order to vacate the husband's note of issue in this matter. On October 12, prior to the return date, a judgment of divorce was granted on default on the basis of the wife's cruel and inhuman treatment of her husband. The judgment also awarded custody of the child. According to the wife, the Referee who signed the judgment was unaware of the pending RJI and order to show cause.
On November 17, 2004, the wife moved to vacate the default judgment solely on the ground of lack of jurisdiction due to lack of service. She asserted that she never encountered the husband's attorney, whom she knew, on the date of the alleged service; nor was she served with a copy of the summons with notice. The court directed a traverse hearing before a Special Referee, which was held on February 16, 2005.
The husband's attorney, licensed to practice for 30 years, testified that he resides on Grand Street, on Manhattan's lower east side, and that on the evening of August 3, 2004, at approximately 9 P.M., he left his apartment to walk one and a half miles to the wife's apartment on Prince Street to serve her with a summons with notice. The attorney, a good friend of [*5]plaintiff, had known his client's wife socially for at least 10 years. In fact, he had attended various family functions, including their son's bar mitzvah. On the night in question, he observed the wife at the intersection of Prince and Wooster Streets, and handed her the summons with notice, stating, "Susan, I have a summons for you, along with the Standards of Child Support." According to the attorney, he asked the wife if she were in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?" The attorney noted that he and the wife were standing in front of a store, "Camper Shoes," located at 125 Prince Street, and that the time was approximately 9:45 P.M.
After completing the service, the attorney returned home by taxicab, arriving by 10 P.M., and immediately prepared an affidavit of service, as well as a diary entry noting the service. The affidavit of service, notarized and filed with the County Clerk the next day, reflected an August 3, 2004 service at 9:45 p.m. in front of 125 Prince Street. The attorney identified the wife as the person he had served at the time and place in question.
The wife testified that she knew the attorney socially and that she resided in an apartment at an address on Prince Street,[FN2] and was employed by J.P. Morgan Chase, with duties that included "computer information security." She stated that on the night in question, she left her apartment at "about 9 P.M." to bring her laundry to Kim's Laundromat, located approximately three blocks away at 207 Thompson Street, just north of Bleecker Street. After loading the washing machines, she left the laundromat to walk two blocks to a Citibank ATM machine located on LaGuardia Place, between Bleecker and West 3rd Streets, completed a transaction and walked directly back to the laundromat. She produced her ATM receipt showing a completed transaction at 9:35 P.M. She denied being at the intersection of Prince and Wooster Streets and having been served with a copy of the summons with notice. She also noted that her apartment was located approximately three and a half blocks away from the corner of Prince and Wooster Streets. The wife finished her laundry at about 10 P.M. and was assisted by "Antonio," a laundromat employee, in carrying several loads of laundry back to her apartment. On cross-examination, she stated that it would take "maybe about ten minutes" to walk the three and a half blocks from the Citibank ATM to the corner of Prince and Wooster Streets.
Hae Jung Lee, who worked at the laundromat, recalled the evening in question and confirmed that the wife arrived there "a little after nine o'clock in the evening." As she recalled, "After [the wife] put everything inside the machine, she said, I will go out, come back soon,' and she went out." According to Lee, a wash cycle takes 24 minutes. She estimated the wife's absence at "[a]bout ten minutes." She testified that after the wife returned, she finished her wash and left the laundromat a little after 10:30 P.M.
In his report, the Referee found that the husband met his burden to show, by a preponderance of the evidence, that the attorney had served the wife, finding him
the most credible witness. His testimony had a ring of truthfulness to it. Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service? Moreover, he knew defendant personally for over a decade and knew where she lived, which was within walking distance of his home. If he had not run into her on the night in question, he could have served her at some other time, there being no statute of limitations problem. His [*6]testimony concerning defendant's response to his query about whether she was in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?", seems realistic.
Lee's testimony was suspect. How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing? Even if she did, her alibi testimony does not negate the possibility that [the attorney] did, in fact, serve the summons with notice on defendant while the latter admittedly had exited the Laundromat.
[The wife's] testimony was not credible. She had a motive to deny being served with process. The most probative bit of evidence, [the wife's] ATM receipt, is inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned.
With regard to the wife's testimony, the Referee noted in particular:
On cross-examination, the [wife] testified that the distance between her bank and the corner of Prince and Wooster Streets is 3½; blocks. . . . [The wife] further testified, over objection, that the distance can be walked in ten minutes. [The Wife] testified that the time on the ATM receipt indicates that the time of her banking transaction was at 2135 . . . 9:35 p.m.
The motion court confirmed the report, finding that the findings were "supported by the record" and that "the husband obtained jurisdiction over the wife by serving her as indicated in the affidavit of service."
The burden of proof on the issue of jurisdiction rests with the party asserting it (Lamarr R v Klein, 35 AD2d 248, 250 [1970], affd 30 NY2d 757 [1972]), and, after a hearing, must be established by a preponderance of the evidence (Elm Mgt. v Sprung, 33 AD3d 753 [2006]). "[T]he evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1979], quoting Fisch on NY Evidence § 1090 [2d ed]). If substantiated by the record, a referee's determination will not be disturbed (Nager v Panadis, 238 AD2d 135 [1997]; see Marcus v Marcus, 4 AD3d 257 [2004]).
At the outset of the hearing, the wife's attorney, noting that the husband's sole witness was an attorney, asked the referee not to indulge in a "presumption based upon either the affidavit of service or the fact that the person who allegedly effected service is an attorney." This request was in keeping with the general rule in assessing a witness's credibility (see NY PJI3d 1:8, 1:41). Unfortunately, as his report shows, the referee based his decision as to credibility essentially on the process server's status as an attorney. Although he stated that the attorney's testimony had a "ring of truthfulness" to it, the basis of that conclusion is clear from the very next sentence: "Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service?" While on the subject of rhetorical questions, one might ask, "Why would an attorney put himself in the position of acting as a process server for his client in a case such as this, given his relationship to the parties?" As to the wife's alleged [*7]response to the military service question - "Why are you asking that stupid question?" - its relevance to the attorney's credibility is unfathomable.
On the other hand, the Referee found the wife not credible because she had a motive to deny being served. This finding ignores the fact that the attorney also had an obvious interest - sustaining his claim of service and supporting his client's case. Furthermore, the Referee's reasoning is flawed in finding the ATM receipt "inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned." While this may be true, the Referee ignoring the only piece of unassailable documentary evidence offers no explanation as to why the wife would walk completely out of her way to the intersection of Prince and Wooster Streets (the alleged place of service, which was two blocks south of Bleecker Street) before returning to the laundromat, which was one street west of the ATM (both of which were north of Bleecker Street). In that regard, while both the Referee and the majority question Lee's credibility, particularly with respect to her recollection of the exact date and time in question, the Referee made no finding that the wife was not at the laundromat at that time. In any event, on cross-examination, Lee offered a plausible explanation for her specific recollection of the date and time.
Moreover, what reason would the wife have, if actually served, to ignore process? As she pointed out in argument, she had vigorously participated in those proceedings since their inception in Family Court in 2003 and had never defaulted. In fact, it was she who instituted the original divorce proceeding, which she discontinued only because of a lack of funds.
A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations. Status in life cannot be the decisive factor in a "he said/she said" credibility contest. "General propositions do not decide concrete cases" (Lochner v New York, 198 U.S. 45, 76 [1905], Holmes, J., dissenting). Since status was decisive in this case, it cannot be said that the husband sustained his burden of proof that required - as to the challenged service - a preponderance of the evidence (Jacobs v Zurich Ins. Co., 53 AD2d 524, 525 [1976]).
The majority vacates the wife's default because of her efforts to appear in and defend the action prior to the entry of the default judgment. In my view, such a result is untenable. In upholding the Referee's determination at the traverse hearing, the majority agrees with the Referee's conclusions that the wife was served with the summons and that her testimony was incredible, and also with his assessment of Lee's testimony as "suspect." In short, the majority implicitly finds that the wife not only perjured herself but suborned perjury as well. While courts may be inclined to a more liberal attitude in vacating defaults in matrimonial actions (see e.g. O'Brien v O'Brien, 149 AD2d 830 [1989), no court has ever been so indulgent as to reward a party who has engaged in such conduct by granting affirmative relief.
The majority's disposition is also unsupportable because, despite the tendency toward a liberal policy in matrimonial proceedings, "it is still incumbent upon a party seeking vacatur to establish both a reasonable excuse for the default and a meritorious defense" (Estate of Allen v Allen, 258 AD2d 423 [1999]). There is no showing of a meritorious defense, and to the extent that the wife's claim of lack of service the only basis for her motion to vacate the default can be considered an excuse, this claim has been patently rejected by the majority.
In my view, the majority's route to the result reached is as tortured as it is inexplicable. [*8]
Accordingly, I would deny plaintiff's motion to confirm the referee's report, grant defendant's cross motion to disaffirm the report and her motion to vacate the default judgment, and dismiss the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 26, 2007
CLERK
Footnotes
Footnote 1:The Referee's recommendation regarding the ultimate disposition of the wife's motion was stricken as beyond the scope of the order of reference. Footnote 2:The attorney testified that the wife resided in an apartment with a different number.
Gass v Gass
2007 NY Slip Op 06252
Decided on July 26, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 26, 2007 Sullivan, J.P., Williams, Gonzalez, Sweeny, Kavanagh, JJ.
183 Index 309697/04
[*1]Thomas Gass, Plaintiff-Respondent, vSusan Gass, Defendant-Appellant.
Susan Gass, appellant pro se. Philip Groner, New York, for respondent.
Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered August 3, 2005, which, inter alia, denied defendant's motion to vacate a default judgment, reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted with leave to file a late answer within 20 days of service of a copy of this order with notice of entry.
Initially, we find that the motion court properly confirmed the Referee's report, which clearly defined and addressed the issues raised, resolved matters of credibility, and made findings substantiated by the record (see Melnitzky v Uribe, 33 AD3d 373 [2006]). Plaintiff husband proved by a preponderance of the evidence, after a traverse hearing, that his attorney had properly served the wife with a copy of the summons with notice in this divorce action (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006] [declining to disturb hearing court's finding, supported by the record, that process server was more credible than defendant]).
The dissenting Justice accurately relates the facts, but erroneously rejects the credibility determinations made by the referee and confirmed by the motion court. Contrary to the dissent's assertion, neither the court nor the Referee based its credibility findings primarily on the process server's status as an attorney. Instead, the record shows that the Referee made explicit credibility findings for each of the three critical witnesses at the traverse hearing - the wife, the process server/attorney and Ms. Lee - and did so based on an evaluation of the traditional criteria for weighing the credibility of witness testimony.
For instance, the Referee found that the wife's testimony was "not credible" based on her obvious motive to deny being served with process (see NY Pattern Jury Instructions [PJI3d] 1:8 [in weighing testimony, jurors may consider the interest or lack of interest of any witness in the outcome of the case]), and further noted that the wife's two strongest pieces of evidence at the traverse hearing - the ATM receipt mentioned by the majority and Lee's testimony - were both "inconclusive" regarding the pivotal issue of whether service was accomplished.
Similarly, the Referee found Lee's testimony "suspect," asking rhetorically, "How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing?" It was perfectly appropriate for the Referee and the motion court to consider the probability or [*2]improbability of Lee's testimony, when considered in light of all the other evidence in the case (see PJI3d 1:8). In fact, the absurdity of Lee's testimony that she remembered the exact date and time of the wife's appearance at her laundromat six months earlier alone justifies this credibility determination made by the Referee.
Nor did the referee and motion court rely "decisively" on the process server's status as an attorney. Although the Referee certainly did question why "an attorney admitted to practice for over 30 years" would risk his law license by filing a perjurious affidavit of service, the dissent ignores the remainder of the Referee's statement, which points out that engaging in such a desperate falsehood to accomplish service on that particular evening would have been illogical and completely unnecessary, given that the attorney was personally familiar with the wife, lived in close proximity to her, and there was no imminent risk that the statute of limitations would expire if service had not immediately been effected.
In our view, the Referee's statements merely reflect an inquiry into the absence of logical reasons, given the potential risks, of engaging in such misconduct. We agree with his conclusion that the attorney had no discernible motive or logical reason to state falsely that he had properly served the wife, whom he knew personally and who would obviously deny service, since he easily could have accomplished the same result on another occasion.
Nevertheless, under the unique circumstances of this case, the order should be reversed and the default vacated because, apparently unbeknownst to the Referee who granted the default, the wife had appeared and filed a motion seeking affirmative relief in Supreme Court prior to the default being entered.
Although the wife's default in failing to timely answer the complaint is undisputed, the record amply demonstrates that she undertook several actions that should have placed both the court and the husband's counsel on notice that she intended to appear and defend the matrimonial action. First, on September 27, 2004, after allegedly learning of the divorce action for the first time during an appearance in Family Court, the wife served a notice of appearance (which included a demand for a copy of the divorce complaint and all other papers) and a request for judicial intervention on the husband's attorney by regular mail. Significantly, a copy of the wife's notice of appearance in the record includes a stamp stating "RECEIVED OCT 1 - 2004 TRIAL SUPPORT OFFICE." This indicates that Supreme Court, or at least the Trial Support Office of that court, received notice that the wife was appearing in the action on October 1, 2004, which is 11 days before the default judgment was signed.
Second, the record also shows that the husband's attorney received the wife's notice of appearance, as evidenced by his September 30, 2004 "Notice of Rejection," wherein he rejected service of the wife's papers as untimely. The notice of rejection further indicates by stamp that it was received by the Trial Support Office on September 30, 2004, 13 days before the default judgment was signed. These documents indicate that the husband's attorney was obviously aware of the wife's appearance in the action 12 days before the default judgment was signed.
In addition, the record shows that on October 6, 2004, the wife submitted a show cause order to vacate the husband's note of issue in the divorce action. Justice Stackhouse signed the order on October 8, and set a return date of October 18. Thus, four days before the default judgment was signed, the record shows that the wife had made a motion in Supreme Court seeking affirmative relief in the divorce action.
From these facts, it is evident that the court and the husband's attorney were or should [*3]have been aware of the wife's appearance and her request for affirmative relief several days before the default was signed. However, the papers filed by the husband's counsel in support of the default judgment, as well as the judgment itself, strongly indicate that this information was never brought to the attention of the referee who granted the default. Indeed, the husband's attorney's affirmation of regularity states that "[the wife] is in default for failure to serve a notice of appearance in this action in due time, and the time to answer has not been extended by stipulation, court order or otherwise." Further, the divorce judgment itself states that "Defendant has not appeared and is in default."
Although we recognize that the husband's papers in support of the default were prepared and filed before the wife's entry into the case, it remains a mystery to us why the Referee was apparently oblivious to her appearance. Equally puzzling is how a Referee can grant a default judgment in an "uncontested" matrimonial action at the same time a Supreme Court Justice has signed a show cause order, brought by the party allegedly in default, requesting vacatur of the note of issue in that action. If the Referee had been made aware of the wife's entry into the case, it is entirely possible that this default never would have been entered.
We note that in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce or ancillary relief (see Viner v Viner, 291 AD2d 398 [2002]; O'Brien v O'Brien, 149 AD2d 830, 831 [1989]). Accordingly, even assuming that the wife's allegations of a reasonable excuse and meritorious defense were insufficient by themselves to justify the standard for vacatur, under the unusual circumstances of this case, including the wife's pro se status and the fact that the Referee was apparently kept in the dark about her appearance in the case and intent to defend the action, we find that the motion court abused its discretion in refusing to vacate the default (id. at 831-832). We also note that the wife faithfully appeared during all Family Court proceedings and during her prior divorce action, and her motion to vacate her default was made promptly upon its entry.
Finally, our dissenting colleague is mistaken in suggesting that we implicitly find that the wife had perjured herself and suborned perjury. We find no such thing. As our opinion makes clear, we find that the Referee's credibility determinations were supported by the evidence at the traverse hearing, and, to that extent, his finding of proper service must be upheld. Unlike the dissent, we do not believe it is this Court's function to make an independent determination as to who, in fact, perjured themselves at the traverse hearing, and we offer no opinion thereon. Our vacatur ruling is based solely on the unfairness of granting a premature default against an unrepresented party in a matrimonial action. It has nothing to do with indulging any party's alleged misconduct.
All concur except Sullivan, J. who dissents in a memorandum as follows:
SULLIVAN, J. (dissenting) Contrary to the majority's view, this appeal from the denial of defendant-wife's motion to vacate a default judgment of divorce turns solely on the motion court's confirmation of a referee's report, after a traverse hearing, to the extent it determined that the wife had been personally served with a copy of the summons with notice, as indicated in the affidavit of [*4]service [FN1]. Since I believe that the Referee, as a matter of law, improperly assessed the credibility of the process server, who happened to the husband's attorney, I dissent and would reverse the referee's factual determination and grant defendant's motion to vacate the default and dismiss the complaint for lack of personal jurisdiction.
Before turning to the facts adduced at the traverse, some background leading to the challenged service of process is in order. The parties, married in 1987, have one child, a son, born in 1990. An incident in June 2003, in which the wife allegedly, in anger and in the husband's presence, punched the child about the face and body and threw a chair at him, brought the parties to Family Court, which issued a temporary order of protection pursuant to Article 8 of the Family Court Act in favor of the child and the husband. After a hearing, Family Court extended the order of protection and appointed a law guardian for the child. On August 6, 2003, the husband filed a custody petition and, following a hearing held that day, was granted custody of the child with continuation of the order of protection.
The wife thereafter commenced a divorce action in Supreme Court, New York County, seeking, inter alia, custody of the child, which prompted a transfer of the family offense and custody petitions to the Supreme Court for merger with the divorce action. A law guardian appointed for the child recommended that custody remain with the father. At a settlement conference with the Justice presiding, the wife discontinued her divorce action. The husband commenced the instant divorce action the same day - August 3, 2004 - by filing a summons with notice with the New York County Clerk. That night, the husband's attorney allegedly personally served a copy of the summons and notice, together with a copy of the Child Support Standards Act, upon the wife as she was walking near her Prince Street apartment in Soho. The attorney filed an affidavit of service with the New York County Clerk on August 4. The wife never appeared in her husband's divorce action.
The wife claims she first heard of the new divorce action on September 27, 2004, during a Family Court support hearing. On the same date, she filed a Request for Judicial Intervention (RJI) with a request for a preliminary conference, and on October 6, 2004 she filed a show cause order to vacate the husband's note of issue in this matter. On October 12, prior to the return date, a judgment of divorce was granted on default on the basis of the wife's cruel and inhuman treatment of her husband. The judgment also awarded custody of the child. According to the wife, the Referee who signed the judgment was unaware of the pending RJI and order to show cause.
On November 17, 2004, the wife moved to vacate the default judgment solely on the ground of lack of jurisdiction due to lack of service. She asserted that she never encountered the husband's attorney, whom she knew, on the date of the alleged service; nor was she served with a copy of the summons with notice. The court directed a traverse hearing before a Special Referee, which was held on February 16, 2005.
The husband's attorney, licensed to practice for 30 years, testified that he resides on Grand Street, on Manhattan's lower east side, and that on the evening of August 3, 2004, at approximately 9 P.M., he left his apartment to walk one and a half miles to the wife's apartment on Prince Street to serve her with a summons with notice. The attorney, a good friend of [*5]plaintiff, had known his client's wife socially for at least 10 years. In fact, he had attended various family functions, including their son's bar mitzvah. On the night in question, he observed the wife at the intersection of Prince and Wooster Streets, and handed her the summons with notice, stating, "Susan, I have a summons for you, along with the Standards of Child Support." According to the attorney, he asked the wife if she were in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?" The attorney noted that he and the wife were standing in front of a store, "Camper Shoes," located at 125 Prince Street, and that the time was approximately 9:45 P.M.
After completing the service, the attorney returned home by taxicab, arriving by 10 P.M., and immediately prepared an affidavit of service, as well as a diary entry noting the service. The affidavit of service, notarized and filed with the County Clerk the next day, reflected an August 3, 2004 service at 9:45 p.m. in front of 125 Prince Street. The attorney identified the wife as the person he had served at the time and place in question.
The wife testified that she knew the attorney socially and that she resided in an apartment at an address on Prince Street,[FN2] and was employed by J.P. Morgan Chase, with duties that included "computer information security." She stated that on the night in question, she left her apartment at "about 9 P.M." to bring her laundry to Kim's Laundromat, located approximately three blocks away at 207 Thompson Street, just north of Bleecker Street. After loading the washing machines, she left the laundromat to walk two blocks to a Citibank ATM machine located on LaGuardia Place, between Bleecker and West 3rd Streets, completed a transaction and walked directly back to the laundromat. She produced her ATM receipt showing a completed transaction at 9:35 P.M. She denied being at the intersection of Prince and Wooster Streets and having been served with a copy of the summons with notice. She also noted that her apartment was located approximately three and a half blocks away from the corner of Prince and Wooster Streets. The wife finished her laundry at about 10 P.M. and was assisted by "Antonio," a laundromat employee, in carrying several loads of laundry back to her apartment. On cross-examination, she stated that it would take "maybe about ten minutes" to walk the three and a half blocks from the Citibank ATM to the corner of Prince and Wooster Streets.
Hae Jung Lee, who worked at the laundromat, recalled the evening in question and confirmed that the wife arrived there "a little after nine o'clock in the evening." As she recalled, "After [the wife] put everything inside the machine, she said, I will go out, come back soon,' and she went out." According to Lee, a wash cycle takes 24 minutes. She estimated the wife's absence at "[a]bout ten minutes." She testified that after the wife returned, she finished her wash and left the laundromat a little after 10:30 P.M.
In his report, the Referee found that the husband met his burden to show, by a preponderance of the evidence, that the attorney had served the wife, finding him
the most credible witness. His testimony had a ring of truthfulness to it. Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service? Moreover, he knew defendant personally for over a decade and knew where she lived, which was within walking distance of his home. If he had not run into her on the night in question, he could have served her at some other time, there being no statute of limitations problem. His [*6]testimony concerning defendant's response to his query about whether she was in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?", seems realistic.
Lee's testimony was suspect. How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing? Even if she did, her alibi testimony does not negate the possibility that [the attorney] did, in fact, serve the summons with notice on defendant while the latter admittedly had exited the Laundromat.
[The wife's] testimony was not credible. She had a motive to deny being served with process. The most probative bit of evidence, [the wife's] ATM receipt, is inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned.
With regard to the wife's testimony, the Referee noted in particular:
On cross-examination, the [wife] testified that the distance between her bank and the corner of Prince and Wooster Streets is 3½; blocks. . . . [The wife] further testified, over objection, that the distance can be walked in ten minutes. [The Wife] testified that the time on the ATM receipt indicates that the time of her banking transaction was at 2135 . . . 9:35 p.m.
The motion court confirmed the report, finding that the findings were "supported by the record" and that "the husband obtained jurisdiction over the wife by serving her as indicated in the affidavit of service."
The burden of proof on the issue of jurisdiction rests with the party asserting it (Lamarr R v Klein, 35 AD2d 248, 250 [1970], affd 30 NY2d 757 [1972]), and, after a hearing, must be established by a preponderance of the evidence (Elm Mgt. v Sprung, 33 AD3d 753 [2006]). "[T]he evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1979], quoting Fisch on NY Evidence § 1090 [2d ed]). If substantiated by the record, a referee's determination will not be disturbed (Nager v Panadis, 238 AD2d 135 [1997]; see Marcus v Marcus, 4 AD3d 257 [2004]).
At the outset of the hearing, the wife's attorney, noting that the husband's sole witness was an attorney, asked the referee not to indulge in a "presumption based upon either the affidavit of service or the fact that the person who allegedly effected service is an attorney." This request was in keeping with the general rule in assessing a witness's credibility (see NY PJI3d 1:8, 1:41). Unfortunately, as his report shows, the referee based his decision as to credibility essentially on the process server's status as an attorney. Although he stated that the attorney's testimony had a "ring of truthfulness" to it, the basis of that conclusion is clear from the very next sentence: "Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service?" While on the subject of rhetorical questions, one might ask, "Why would an attorney put himself in the position of acting as a process server for his client in a case such as this, given his relationship to the parties?" As to the wife's alleged [*7]response to the military service question - "Why are you asking that stupid question?" - its relevance to the attorney's credibility is unfathomable.
On the other hand, the Referee found the wife not credible because she had a motive to deny being served. This finding ignores the fact that the attorney also had an obvious interest - sustaining his claim of service and supporting his client's case. Furthermore, the Referee's reasoning is flawed in finding the ATM receipt "inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned." While this may be true, the Referee ignoring the only piece of unassailable documentary evidence offers no explanation as to why the wife would walk completely out of her way to the intersection of Prince and Wooster Streets (the alleged place of service, which was two blocks south of Bleecker Street) before returning to the laundromat, which was one street west of the ATM (both of which were north of Bleecker Street). In that regard, while both the Referee and the majority question Lee's credibility, particularly with respect to her recollection of the exact date and time in question, the Referee made no finding that the wife was not at the laundromat at that time. In any event, on cross-examination, Lee offered a plausible explanation for her specific recollection of the date and time.
Moreover, what reason would the wife have, if actually served, to ignore process? As she pointed out in argument, she had vigorously participated in those proceedings since their inception in Family Court in 2003 and had never defaulted. In fact, it was she who instituted the original divorce proceeding, which she discontinued only because of a lack of funds.
A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations. Status in life cannot be the decisive factor in a "he said/she said" credibility contest. "General propositions do not decide concrete cases" (Lochner v New York, 198 U.S. 45, 76 [1905], Holmes, J., dissenting). Since status was decisive in this case, it cannot be said that the husband sustained his burden of proof that required - as to the challenged service - a preponderance of the evidence (Jacobs v Zurich Ins. Co., 53 AD2d 524, 525 [1976]).
The majority vacates the wife's default because of her efforts to appear in and defend the action prior to the entry of the default judgment. In my view, such a result is untenable. In upholding the Referee's determination at the traverse hearing, the majority agrees with the Referee's conclusions that the wife was served with the summons and that her testimony was incredible, and also with his assessment of Lee's testimony as "suspect." In short, the majority implicitly finds that the wife not only perjured herself but suborned perjury as well. While courts may be inclined to a more liberal attitude in vacating defaults in matrimonial actions (see e.g. O'Brien v O'Brien, 149 AD2d 830 [1989), no court has ever been so indulgent as to reward a party who has engaged in such conduct by granting affirmative relief.
The majority's disposition is also unsupportable because, despite the tendency toward a liberal policy in matrimonial proceedings, "it is still incumbent upon a party seeking vacatur to establish both a reasonable excuse for the default and a meritorious defense" (Estate of Allen v Allen, 258 AD2d 423 [1999]). There is no showing of a meritorious defense, and to the extent that the wife's claim of lack of service the only basis for her motion to vacate the default can be considered an excuse, this claim has been patently rejected by the majority.
In my view, the majority's route to the result reached is as tortured as it is inexplicable. [*8]
Accordingly, I would deny plaintiff's motion to confirm the referee's report, grant defendant's cross motion to disaffirm the report and her motion to vacate the default judgment, and dismiss the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 26, 2007
CLERK
Footnotes
Footnote 1:The Referee's recommendation regarding the ultimate disposition of the wife's motion was stricken as beyond the scope of the order of reference. Footnote 2:The attorney testified that the wife resided in an apartment with a different number.