The New York Department of Health will only issue certified birth certificates to a person named on the birth certificate i.e. the child or the parents. My grandmother, born in 1912, passed away in 1997, long after both her parents. Since everyone on her birth certificate is dead, I need a court order to obtain a copy of this document for my Italian dual citizenship application.
Article 78 proceedings provide a mechanism for individuals to request copies of these vital records. The person named on the birth certificate must be dead. You must provide proof of death as well as proof you are related to the individual. If your parent or grandparent is still alive and won’t order a copy of their birth certificate for you, you are out of luck.
I used this step by step guide created by Samantha Genova as well as the guide attorney Cheryl Forchilli shared with the Dual US-Italian Citizenship Facebook group. If you are going through the process, I highly recommend you look at both of these guides and search the FB group for ‘Article 78.’
Thanks to the non-profit Reclaim the Records which has worked so hard to make these records publicly available.
Where to File
The Article 78 Proceeding should be filed in the Supreme Court of the county which holds the record. This means you may file in the county in which your relative was born if you want to request a record from the town clerk or you can file in Albany, where the Department of Health which issues state records is located.
My grandmother was born in a very small town and I’m not sure the clerk would be familiar with how to handle this kind of request so I chose to file in Albany where they are used to this sort of thing.
Make sure the state has a copy of the record. Some people get all the way through the process only to learn the state doesn’t have a copy. You can search the New York State Birth Index up to 1942 on Ancestry with a paid membership or browse the index for free on Internet Archive.
Using Article 78 to Obtain Multiple Copies of a New York State Birth Certificate
If you need multiple copies, ask for them in your petition. You don’t need to name other family members as petitioners or give an explanation. I adjusted the language in the petition template to say
‘… to deliver to Petitioner six long-form, certified signed and sealed copies of the (a) birth certificate for Petitioner’s grandmother…’
I don’t know yet if it will work but hope I can save some of my family members from spending $400 for a single document. People in the FB group have reported mixed results. Some received court orders allowing them only one document. Others were sent only one copy despite a court order for more.
Include a Return Date!
The return date is the date you are asking the court to review your request. It must be at least 3 Fridays in the future. I’d suggest adding an extra week or two to be safe.
I filed my petition, request for judicial intervention (RJI), and exhibits on 9/12. I received an index number the next day. I added the index number to my notice of petition and uploaded that a week later (after a clerk reminded me!).
Both my notice of petition and RJI were returned due to a missing return date. The notice of petition template I used simply said ‘at the court’s earliest convenience.’ Some people have had their paperwork processed using that language but mine was flagged, perhaps because I did not include a return date at all on the RJI.
I changed my notice of petition to say ‘on 14 October 2022 or at the court’s earliest availability.’
Correcting Your Petition
While correcting my RJI and Notice of Petition, I noticed that my petition hadn’t scanned correctly – a post it note on the first page obscured some text. To file an amended petition, log into your NYSCEF account and navigate to your Document List. Click File Document to this Case. Select ‘Documents not related to a motion/petition/OSC under the Non-Motion Documents section. You should find ‘Petition (Amended)’ in the drop down list.
Pending vs Processed
After re-submitting those three documents, I noticed that while my amended Petition was processed, both the RJI and Notice of Petition were still stuck in ‘pending’ mode. According to the NYSCEF Resource Center, a ‘pending’ document has been received and is under review. https://askalawlibrarian.nycourts.gov/NYSCEF/faq/346745
After several days of waiting for pending to change to processed, I contacted the Albany Supreme Court to ask if I was supposed to do something. Their number is 518-285-8989. I learned that these documents would be ‘pending’ until my case was reviewed on my return date of 14 October 2022. The clerk gave me the all clear to serve both the Commissioner of the Department of Health and the Attorney General.
On another note, I found it a little confusing to figure out who to contact with questions. Every time I view my case, I see contact info for the county clerk. I was using those phone numbers and email addresses without much luck until someone in that office redirected me to the Supreme Court.
Serving Notice from outside New York via USPS
Service must be made by someone who is not a party to the case. My husband mailed my documents for me via USPS certified mail.
We ran into a major snag at the post office when trying to serve the Attorney General. On their website, the address is simply
Office of the Attorney General
The Capitol
Albany, NY 12224-0341
My local post office would not accept this address. Their address verification system demanded a street address because I was sending via certified mail. I couldn’t find one online and called the Attorney General’s office. They told me to use
Office of the Attorney General
#1 The State Capitol
Albany, NY 12224-0341
My post office didn’t like this either but a different clerk allowed me to override the validation and send anyway.
That’s as far as I’ve gotten in this process so far. Hopefully in a few weeks I will have another update!