Facebook Service | Foreign Affirmations | Students Suspended For Texts

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Facebook Service Of Process

Facebook Service Of ProcessRecently a Family Court allowed for substituted service of a party via Facebook.

Service of process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party (such as a defendant), court, or administrative body in an effort to exercise jurisdiction over that person. This enables that person to respond to the proceeding before the court, body, or other tribunal. In New York the rules governing service of process is set forth in New York Civil Practice Law and Rules (“CPLR”), and provides for various ways to serve process on, among others, an individual. Personal service, that is handing process to the individual directly, is of course the preferred way. But what happens if you just can’t find the person?

In Matter of a Support Proceeding Noel B. v. Maria A. the Petitioner filed an action seeking to modify an order of child support based on the alleged emancipation of the subject child.

The Petitioner appeared stating that he was unable to effect service upon the Respondent. He presented an affidavit in which he stated that the Respondent was unknown to the occupant of the Respondent’s last known address, who is described as a monthly tenant.

The Petitioner then described under oath the other efforts he made to try and locate the Respondent to effectuate service. The Petitioner called and sent text messages to his daughter (the party’s now emancipated 22 year old child) to request the Respondent’s location, but no one answered the call or replied to his text messages and voicemail. He also called and sent a text message to his son (the subject child on the instant petition) requesting that information, but again there was no reply of any kind. He also “Googled” the Respondent, but was unable to find any location there either. The Court noted that the support collection unit (“SCU”) continues to have the Respondent’s last known address on file, meaning that all correspondence and communication with respect to the funds she is receiving for child support are sent to that address.

In describing his efforts to the Court, the Petitioner stated that he is aware that the Respondent maintains an active social media account with Facebook. The Petitioner’s current spouse maintains her own Facebook account, and has posted photos that have been “liked” by the Respondent as recently as July, 2014.

The Court found that:

Facebook is a social networking website that allows its users to interact with friends, relatives, acquaintances and individuals with common interests. Due to its online nature, there are no geographic limitations on Facebook — people with whom an individual interacts with on Facebook can be as close as the house next door or as far away as a continent on the other side of the world. As of June 30, 2014 Facebook has 1.32 billion monthly active users worldwide. “Liking” on Facebook is a way for Facebook users to share information with each other. The “like” button, which is represented by a thumbs-up icon, and the word “like” appear next to different types of Facebook content … [a]ny Facebook user who “likes” a specific Page or posted content remains in control of his or her “like” at all times and is free to “unlike” the Page or content by clicking an “unlike” button provided by Facebook.

The Court further recognized that CPLR §308 states in relevant part:

Personal Service upon a natural person shall be made by any of the following methods…
5. In such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.

The Court also found that other types of service under CPLR § 308 were impracticable, and that the Petitioner had made diligent efforts to locate the Respondent, but had been unable to obtain an address where service could be made, concluding as follows:

However, despite the absence of a physical address, the Petitioner does have a means by which he can contact the Respondent and provide her with notice of the instant proceedings, namely the existence of an active social media account.

While this court is not aware of any published decision wherein a New York state court has authorized service of process by means of social media, other jurisdictions have allowed such service. The court notes that in both those matters service via Facebook was directed to be made in connection with other means of service

Pursuant to CPLR § 308(5) the court authorizes substituted service by the following method: the Petitioner is to send a digital copy of the summons and petition to the Respondent via the Facebook account, and follow up with a mailing of those same documents to the previously used last known address. The Respondent can receive communications via social media, whereas her actual physical whereabouts are uncertain. The method detailed here by the court provides the best chance of the Respondent getting actual notice of these proceedings.

Foreign Affirmations Ease The Process

Foreign Affirmations Ease The ProcessUnder a bill signed into law by Gov. Andrew Cuomo, beginning January 1, 2015 in New York civil actions, “affirmations” may be substituted for “affidavits” as admissible sworn statements of witnesses located in foreign countries.

The bill (A9762/S5372) allows any person outside of the United States, Puerto Rico, or the Virgin Islands to make an affirmation in which they declare that their statement is true, that it may be used in a court proceeding, and that they face the penalty of perjury for violating their pledge.

Currently, under New York law, an affidavit must be sworn to before a person authorized to take acknowledgments of deeds by the Real Property Law (CPLR 2309(a)). However, certain professional persons (attorney, physician, osteopath, or dentist) may substitute an affirmation for an affidavit in judicial proceedings in which they are not a party. CPLR 2106.

According to the Advisory Committee, “the current law has created significant problems in New York practice. The requirement has made it extremely burdensome to obtain equivalent notarization in foreign countries, which is a common occurrence in major commercial litigation. When executing an affidavit abroad, questions often arise as to who would be the appropriate official that would be equivalent to a New York notary and whether the affidavit obtained in a foreign country may be unusable in New York litigation. Commercial litigants with international cases in the Commercial Division of State Supreme Court increasingly must go to extraordinary lengths to obtain affidavits notarized overseas. This in turn detracts from the desirability of New York as a forum for international commercial disputes, which desirability is important for maintaining New York as an international commercial center.”

Because the affirmation authorized by this law would be used by a much larger group than the limited classes of professionals now permitted, and such may not be familiar with the particulars of the law of perjury, the amendment requires that the signer affirm the facts stated in this form:

I affirm this ___ day of ___, ___, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the forgoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

Lying in either an affidavit or an affirmation is a Class E felony, punishable by up to four years in prison.

Students Suspended For Texts Sent From Home

Students Suspended For Texts Sent From HomeA federal judge recently held that an upstate New York school district and its superintendent did not violate a student’s rights by suspending him for five days for sending violent and threatening text messages about a third student, even though the texts were sent off school grounds and during non-school hours. Bradford v. Norwich City Sch. Dist., 12-cv-1888 (N.D.N.Y 2014).

The parents of the student argued that the suspension infringed on their son’s First Amendment right to free speech, and their own Fourteenth Amendment right to raise their child as they see fit. Both of these arguments were rejected.

It is well-settled under both United States Supreme Court precedent (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 396 U.S. 503 (1969)) and Second Circuit precedent, that school officials are not per se barred from disciplining a student for off-campus speech. In Tinker, a school’s restriction on students wearing black arm-bands in silent protest of the Vietnam War was held to violate free speech. Based thereon, the Second Circuit has set forth the following test for when students may be disciplined for off-campus speech:

[If the speech is] reasonably understood as urging or favoring violent conduct where (1) there was a reasonably foreseeable risk that the speech would come to the attention of the school officials, and (2) there was a reasonably foreseeable risk that it would materially and substantially disrupt the work and discipline of the school. See Wisniewski v. Bd. of Educ., 494 F.3d 34, 38–40 (2d Cir. 2007).

Here, the text conversation essentially consisted of two students discussing the violent acts they wanted to commit against another student. Joking or not, the conversation described such acts in detail, contained references to a gun, as well as to another unrelated student who was seriously injured in a violent assault only weeks earlier. One of the two parties to the conversation forwarded it to a third student, and it was ultimately seen by the student being threatened. The threatened student became visibly upset and began crying. The fact that one of the two actors forwarded this conversation, among other things, made it even more clear that (1) it was reasonably foreseeable that the speech would come to the attention of school officials, and (2) that it would substantially disrupt the work and discipline of the school.

Moreover, the court recognized the enormous liability the school would be subject to if it was privy to these texts, did nothing, and then the acts came to fruition. As a result, the First Amendment claims were dismissed.

With respect to the parents’ Fourteenth Amendment claim that the district’s suspension of their son for off-campus conduct infringed upon their right to raise their child, the parents never submitted any opposition to the district’s motion, thereby lessening the burden upon the district. Further, the mother testified at her deposition that the district’s school-based discipline did not interfere with her ability to impose her own home-based punishment. As a result, this claim was also dismissed.

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