Matter of Khymani H.
2012 NY Slip Op 05414 [97 AD3d 577]
July 5, 2012
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 22, 2012


In the Matter of Khymani H., a Person Alleged to be a Juvenile Delinquent, Appellant.

[*1] Helene Chowes, New York, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Victoria Scalzo of counsel), for respondent.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Khymani H. appeals, by permission, from an order of the Family Court, Kings County (Elkins, J.), dated December 5, 2011, which denied that branch of his motion which was to dismiss the petition due to improper service of process.

Ordered that the order is affirmed, without costs or disbursements.

The appellant contends that the Family Court erred in permitting substituted service of the summons and petition in the absence of reasonable efforts to serve him by personal delivery (see Family Ct Act § 312.1). Even if the appellant is correct, he is not entitled to dismissal of the petition on the ground that the Family Court lacks personal jurisdiction over him. Personal jurisdiction over an individual in a juvenile delinquency proceeding is obtained by means of the "initial appearance," not by service of the summons and petition (Family Ct Act § 320.1; see Matter of Robert O., 87 NY2d 9, 16 [1995]). The initial appearance has not yet taken place.

The Family Court did not consider that branch of the appellant's motion which was to dismiss the petition in furtherance of justice (see Family Ct Act § 315.2), and thus that branch of the motion remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]). Balkin, J.P., Eng, Leventhal and Chambers, JJ., concur.