Sottile v Lopez

[*1] Sottile v Lopez 2014 NY Slip Op 50165(U) Decided on January 29, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaSALLE and MARANO, JJ
2012-2514 D C.

Edward Sottile, Respondent,

against

Diana Lopez, Appellant.

Appeal from a judgment of the Justice Court of the Town of Pleasant Valley, Dutchess County (Paul Caltagirone, J.), entered July 12, 2012. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $900.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

In this small claims action, plaintiff seeks to recover $900, representing alleged overpayments of child support that he had made to defendant. At a nonjury trial, it was established that, pursuant to court order, plaintiff had been paying defendant $425 every week in child support; that, on February 3, 2012, plaintiff had filed an uncontested petition for termination of child support in the Dutchess County Family Court; that plaintiff had continued to make child support payments during the pendency of his petition; that his petition had been granted by order dated March 12, 2012; and that the termination was effective as of February 3, 2012. Following the trial, the Justice Court awarded plaintiff the principal sum of $900.

There is a strong public policy against the restitution or recoupment of child support payments (see Johnson v Chapin, 12 NY3d 461, 466 [2009]; Matter of Krowl v Nightingale, 103 AD3d 726 [2013]; Matter of Taddonio v Wasserman-Taddonio, 51 AD3d 935 [2008]; Baraby v Baraby, 250 AD2d 201, 205 [1998]; Baranek v Baranek, 4 Misc 3d 145[A], 2013 NY Slip Op 25075[U] [App Term, 9th & 10th Jud Dists 2013]; Crosswell v Crosswell, 21 Misc 3d 131[A], 2008 NY Slip Op 52051[U] [App Term, 9th & 10th Jud Dists 2008]; Horne v Pearman, 2003 NY Slip Op 51324[U] [App Term, 9th & 10th Jud Dists 2003]). We note that, in this case, there was no evidence presented warranting application of an exception to that public policy (compare e.g. People ex rel. Breitstein v Aaronson, 3 AD3d 588 [2004]; Matter of Thomas v Commissioner of Social Servs., 287 AD2d 642 [2001]; Vigliotti v Vigliotti, 260 AD2d 470 [1999]). Under the circumstances, we are of the opinion that the judgment of the Justice Court failed to render substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1804,1807).

Accordingly, the judgment is reversed and the action is dismissed.
Nicolai, P.J., Lasalle and Marano, JJ., concur.
Decision Date: January 29, 2014