The applicant requested an order allowing the publication of a name change nunc pro tunc.. He had been unable to obtain a copy of the original order approving the change of name within sufficient time to meet the publication deadline set forth in that order. Upon review of the Affidavit of Publication in The Jewish Week provided by the applicant, the court concludes that such nunc pro tunc order cannot be granted because the published notice does not meet statutory requirements.

A person's ability to change his or her name statutorily derives from Article 6 of the New York Civil Rights Law. The purpose of a statutory provision for a change of name is simply in affirmance and in aid of the common law right to specify a definite point of time when the new name shall take effect. Smith v. U.S. , 197 N.Y. 420, 90 N.E. 947 (1910). However, no judicial proceeding is actually necessary to change one's name; such a change may be made effective through constant usage or habit. Matter of Halligan, 46 A.D. 2d 170, 361 N.Y.S. 2d 458 (4th Dept. 1974). The statutory provisions are simply an alternative procedure for effectuating a change of name. Application of Conde, 186 Misc. 2d 785, 770 N.Y.S. 2d 727 (Kings County 2000).

If a person selects to assume a new name judicially, he or she must adhere to the provisions of Article 6 of the Civil Rights Law. This statute charges the court with examining whether the name sought to be assumed will be a source of or instrumentality for fraud, evasion or interference with the rights of others. Matter of Eisenberg, 2003 N.Y. Misc. Lexis 1144 (Kings County 2003). To this end, the statutory rules provide for wide public notice, setting a definite date on which the new name will be assumed, and establishing a court record of that fact. Application of Carol E.B., 81 Misc. 2d 284, 366 N.Y.S. 2d 98 (Wayne County 1975). Courts have held that the safeguards contained in Article 6 are so vital to public interest that the application must contain sworn statements and provide for publication. Matter of Adoption of J.O.T., 120 Misc. 2d 817, 466 N.Y.S. 2d 636 (Kings County 1983).

The provision of the Civil Rights Law that details the publication requirement is section 63. Section 63 states that:

[*2]If the court to which the petition is presented is satisfied thereby, or by the affidavit and certificate presented therewith, that the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change, the court shall make an order authorizing the petitioner to assume the name proposed. The order shall further recite the date and place of birth of the applicant and, if the applicant was born in the state of New York, such order shall set forth the number of his birth certificate or that no birth certificate is available. The order shall be directed to be entered and the papers on which it was granted to be filed prior to the publication hereinafter directed in the clerk's office of the county in which the petitioner resides if he be an individual, or in the office of the clerk of the civil court of the city of New York if the order be made by that court. Such order shall also direct the publication, at least once, within twenty days after the making of the order, in a designated newspaper in the county in which the order is directed to be entered and if the petition is made by a person subject to the provisions of subdivision two of section sixty-two of this article, in a designated newspaper in any county wherein such person was convicted if different from the county in which the order is otherwise directed to be entered, of a notice in substantially the following form: Notice is hereby given that an order entered by the —— court, —— county, on the —— day of ——, bearing Index Number ——, a copy of which may be examined at the office of the clerk, located at ——, in room number ——, grants me the right to assume the name of —— My present address is ——; the date of my birth is ——; the place of my birth is ——; my present name is —.

The statute provides little leeway in the form and manner of the wording of the published notice of the name change. Although no judicial decisions have been found directly on point, it can be logically assumed that the purpose behind such provision is to safeguard the public from any potential fraud the name change might engender and to provide constructive notice to persons whose rights might be adversely effected by the assumption of the new name. See generally, In Re Petras, 123 Misc. 2d 665, 475 N.Y.S. 2d 198 (Queens County 1984).

The published notice provided by Applicant reads:

The individual currently known as Joshua Dov Silver is authorized to

assume the name of Mordecai Joshua Dov Silver.

This notice does not indicate the county, court or judge who entered the order, the date of the order or its index number, the location at which the order may be examined, or any of the necessary identifying information about the applicant. The court finds such publication to be insufficient to meet the statutory mandates and safeguards of Article 6 of the Civil Rights Law.

The instant application is denied with leave to republish a notice in conformity with section 63 of the Civil Rights Law.

[*3]Dated: December 3, 2003

_____________________________

EILEEN N. NADELSON, J.C.C.

Decision Date: December 03, 2003