Woodson v Long Is. R.R.

[*1] Woodson v Long Is. R.R. 2005 NY Slip Op 50080(U) Decided on January 27, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: January 27, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT :PESCE, P.J., PATTERSON and RIOS, JJ.
2003-1507 Q C

MARK PETER WOODSON, Appellant,

against

LONG ISLAND RAILROAD, Respondent. LONG ISLAND RAILROAD, Third-Party Plaintiff, SYBRENA COOPER, Third-Party Defendant.

Appeal by plaintiff from a decision of the Civil Court, Queens County (A. Gazzara, J.), dated July 29, 2003, deemed (see CPLR 5520 [c]) an appeal from the judgment of the same court, entered November 13, 2003, following a nonjury trial, dismissing the complaint.

Judgment unanimously affirmed without costs.

In this action seeking repayment of child support amounts that defendant Long Island Railroad allegedly wrongfully garnished from plaintiff's wages, the findings of fact made by the court below rested in large part upon the court's evaluation of the credibility of the witnesses, and were made upon a fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Plaintiff's pay had been garnished to the extent of $69.23 per week in child support [*2]payments, apparently pursuant to an out-of-state court order that was not introduced into evidence. The court was entitled to find, based on the parties' testimony, that plaintiff had agreed with the mother of his child to a voluntary increase to $100 per week. Without passing upon the propriety of defendant's procedures in this regard, which have apparently since been changed, we note that plaintiff admitted knowing of the increased deduction from his pay from its inception, and that he did not contest it over a three-year period. Given this inaction, it would be unreasonable and prejudicial under the circumstances to grant the relief plaintiff requests (see Unger v Unger, 145 Misc 2d 633, 636 [Sup Ct, Kings County 1989]).
Decision Date: January 27, 2005