Maurer v Maurer

[*1] Maurer v Maurer 2012 NY Slip Op 50157(U) Decided on January 24, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2010-2458 S C. -x

Robert Maurer, Appellant,

against

Barbara Maurer, Respondent. -x

Appeal from a judgment of the District Court of Suffolk County, Fifth District (Dennis M. Cohen, J.), entered May 28, 2010. The judgment, entered pursuant to an order granting defendant's motion to dismiss, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff brought this small claims action to recover an alleged overpayment of child support. Defendant's motion to dismiss the action was granted, and plaintiff appeals from the judgment that was subsequently entered.

In an earlier child support proceeding brought pursuant to Family Court Act article 4, plaintiff filed a petition for modification of an order of support, seeking, among other things, a child support credit based on his alleged overpayment of child support from June to November 2007. He subsequently filed written objections to the order of the support magistrate, which order did not make any mention of the alleged overpayment, and, by order dated July 29, 2009, the Family Court denied the objections. Plaintiff's remedy was not to commence an independent action but rather to appeal from the order of the Family Court (see Hamza v Hamza, 268 AD2d 459 [2000]). As plaintiff's present cause of action was previously litigated in the Family Court proceeding, we find that the District Court's dismissal of this small claims action provided the parties with substantial justice according to the rules and principles of substantive law (UDCA 1807).

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: January 24, 2012