Healy v Healy

Healy v Healy 2010 NY Slip Op 01438 [70 AD3d 527] February 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

Gregory Healy, Appellant,
v
Desiree Healy, Respondent.

—[*1] Gregory Healy, appellant pro se.

Steven Greenfield, West Hampton Dunes, for respondent.

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered December 8, 2008, which granted plaintiff's motion to accept and implement a report of the Special Referee recommending a downward modification of his spousal maintenance and child support obligations, but limited any credit for premodification payments to the period between March 23, 2007 and October 31, 2008, unanimously modified, on the law, to allow plaintiff a credit against future payments of spousal maintenance in the amount of any overpayments made between February 2, 2005 and October 21, 2008 of which he can submit written proof, and otherwise affirmed, without costs.

On a prior appeal, this Court reversed the motion court's award of spousal maintenance and child support, which had been made retroactive to February 2, 2005, on the ground that the award had been improperly calculated (51 AD3d 551 [2008]). On remand, the Special Referee issued a report recommending a prospective downward modification of maintenance and support, as well as a credit for any premodification excess payments of maintenance that plaintiff could document in writing. In accepting and implementing the report, however, the motion court limited the credit for premodification excess spousal maintenance payments to the period between March 23, 2007 and October 31, 2008. Thus, the court let stand its original award with respect to the balance of the period during which plaintiff paid maintenance, despite this Court's determination as a matter of law that the award had been improperly calculated.

Plaintiff failed to preserve his argument that the Referee should also have allowed a credit for premodification excess child support payments (see Matter of Treider v Lamora, 44 AD3d 1241, 1243 [2007], lv denied 9 NY3d 817 [2007]). Concur—Friedman, J.P., Sweeny, Nardelli and Freedman, JJ.

Motion seeking to vacate stay and for poor person relief denied as academic, [*2]without costs.