Matter of Ovalles v New York City Human Resources Admin.

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Matter of Ovalles v New York City Human Resources Admin. 2008 NY Slip Op 33635(U) December 4, 2008 Supreme Court, New York County Docket Number: 113114/07 Judge: Marcy S. Friedman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 211 112009 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: MARCY S. FRIEDMAN PART 57 Justice INDEX NO. MOTION DATE -V MOTION SEQ. NO. &. & & y & The following papers, numbered 1 to 0 1 0 MOTION CAL. NO. were read on this motlon tolfor PAPERS NUMBERED Notice of Motion] Order to Show Cause -Affldavlts - Exhibits ... Answerlng Affldavlts - Exhibits Replying Affidavits .. w No Cross-Motion: [7 Yes Dated: a -&* ? -/I J.s.~ 0 NON-FINAL DISPOSITION 0 DO NOT POST 0 REFERENCE AL DISPOSITION C k c k if appropriate: . FRIEDMAN [* 2] 1 mrnm liwixm P; RK - NEW YORK SUPREME COURT OF THE STATE OF NEW Y h,Lm+J PRESENT: COUNTY PART Jusfice 57 n INDEXNO.. / -. . /!/3//</d7 - MOTION DATE Tho following papors, numbered 1 t o Notice of Motion/ Ordor to Show Cause Answering Affidavits were read on thls - Affidavits - Exhiblts ... - Exhibits Replying Affidavits I Cross-Motion : r Upon the'foregoing papers, it i s ordered that this bated: b-y - n ?s&A- &K H Check one: & I N N DISPOSITION NON-FINAL DISPOSITION I [* 3] SUPREME COURT OF T H E STATE OF NEW Y O M COUNTY OF NEW YORK PART 57 PRESENT: Hail. Marcv S. Friedmaq, JSC DECISIONK~DER Pet iliori et-, - against NEW YORK CITY HUMAN RESOUR ADMINISTRATION, X This Article 78 proceeding was initially brought by petitioner, pro se, against the New York State Dcpartnicnt of Child Support Enforcement. By order dated Novcmbcr 1 , 2007, this court granted petitioncr s motion to add the New York City Human Resources AdministratioJl ( HRA ) as ;i respondenl. Ptti tioncr subscqucntly appeared by counsel, and by stipulation datcd Fchruary 14, 2008, discontinued the proceeding as against thc State rcspondenl. The caplion OT thc proceeding is amelided to reflect HRA as the respondcnt. Pctitioncr challenges a determination of lhe HRA Support Collection Unit, datcd May 30, 2007, regarding arrcars owed by petitioner for the support of his minor child ( child support determination ). As a thrcshold matter, HIM contends that lhis Article 78 proceeding is barrcd by thc statutc of limitations. This contentioil is without merit. The origiiml coiirt filc, of which this coui-t takes judicial nolice (F& Bookazine Co. v. J&ABindew. h, AD2d 919 [ I Depl 61 19781), shows that the petition was filed on September 28, 2007, within four months of the child [* 4] support detemiuation. To the extent lhat thc pctition seeks rcview o l h e child support determination, it is thcrcfore timely. (& CPLR 217[ I],) Thc deterniinatioii states on its face that i I is tiiial and may be rcvicwcd by Arlicle 78 procceding. HRA s fiirther contcntion that petitioner has fiiled to cxliaiist administrative rcmedies is thcrcforc also without mcrit. This procceding grows out of cffar-ts by respondcnt HRA s Officc o f Child Siipport Enforcet~icntto colleci arrcars allegedly awirig pursuant to ordcrs for child support iiiade in favor of the New York City Commissioner of Social Serviccs as assigncc of Lisa Ovalles, pctitioncr s former wife, who applied for ptiblic assistance on behalf of petitioner s child. (See Malter v f CominisSioncr oPSocial Serviccs v Qvalles, Family Court, New York Counly, Docket No. F13409/91, Order dated Ian. 21, 1992 [Answer, Ex. 53; Matter of Supnoi-t ProceediIis [Alvarado v Ovallesl, Family Court, Bronx County, Docket No. F-2305Y06 [Answer, Ex. 141, Order dated Apr. 17, 2007.) After HRA servcd an execution for arrcars accrued undcr these orders, pelitioner filed ail administrative challenge which was detcrniinetl by the child support delemiination at issuc. The child support determination is made on a pre-printcd Porn1 on which thc agciicy has checked ol l various boxcs. The form notes that petitioner is challenging the amount for child support arrears showii to he due from petitioner to HRA in an Articlc 52 execution. The form lists several possible objections to HRA s collection cfforts. The box that is checked off to I Petitioner also annexes a dctcrniination ofthe United States Departmenl oI-Slatc, dated July 31, 2003, finding pcLilioner ineligible for 3 passport becausc he owes child support arrcars exceeding $5000. IIe rcquests that rcspondeiil be required to contact the passport agcncy and release any rcslrictions that would prevent liiiii h n l obtaining a U.S. passport. Petition, Wherefore Clause.) As petitioner was advised at the hearing ofthe petition, to the extent he s c c h relief from thc dcicimination ofthe Department of State, this relief is not available in this Arlicle 78 prococding. (a Page -2- Supreme Court Recoids OnLlne Library - payo 3 of 5 [* 5] describe petitioner s claim is wrong amount : The amount shown in the notice to judgment debtor/obligor which was served on you by thc SCU [Support Collection Unit] is not correct because a payment you made was not crcdited to you, or because your coir1 ordcr changed the amounl of your child support obligation, or your arrears balance was changed as a result o f a changc in your court order. The dctermination then checks off the followiiig box for Gndirigs of fact. Other : Your claim is denied, based on the fact, at the time your bank account was rcstcained, you owed arrears. Plcase pay ofIaldrrt.ars sooii. 111 opposition to the petition, HRA annexes an Account Slaternciit showing that pctitioner s child support arrcars through October 24, 2007 totaled $80,225.79. This statement contains a detailed brcakdown of payments received froin petitioner on accounl of child support arrears. (Ser: hmcndecl Answer, Ex. 1 .) Pelitioncr does not disputc that HRA properly credited all of thc payments that pctitioner made directly to HRA. Rather, petilioncr c l a i m that in 1994, his marriage was dissolved by a Florida divorce decree which incorporated a separation agreement governing child support, that he has made all payments due under thc Florida dccree for child support directly to his fonner wifc, and that the Florida decree trumps tho New York Family Court orders. Respondcnt argues that it is entitled to cnforce thc racially valid orders of lhc New York Family Court uiid that petitioner is riot entitled to a credit ror any payments made directly to his formcr wife. (& Anieridcd Answer, ~1~75-89.)2 Respondenl has clfol-ced thc New York Family Court support ordcrs by iiiconie 1 Petitioncr s clniin that he wus unaware of the New York Family Court support orders is flatly conlradictcd by the documentary evidence. Petitioncr appeared i n 199 I 1;amily Court proceeding and soughl a downward modification of his child support obligations. (b Amended Answer, lixs. 6, 9.) Hc also appeared by counsel in the 2006 Family Court proceeding. (Set id., Exs. 12, 13.) Page -3- Supreme Court t<Hcords DnLine Library - page 4 of 5 [* 6] exccutinns issued against petitioner sincc 2001, (& Aniendcd Answer, Ex. 1 .) Yct, petjtioiier itiakes no showing that he ever applied to Family Court to vacate the orders based on the Florida ~ ~ V O decree T C ~ or that hc cver, bcfore commencing ihe instant Articlc 78 proceeding, sought a determinatioii in any couA that the New York ordcrs were not valid in light of the Florida decrcc. Even assumirig grguendo that ihe validity of the Faniily Court orders may now be challenged under the guise of a challenge to the ainounl of an Articlc 52 execution, petitioner rests on the bare assertion, unsupported by any citation to legal authority, that thc Florida decree is controlling as to his support obligations. Petitioncr wholly f d s to address the legal issuc of which of the ardcrs should be recognized for purposcs of continuing exclusive jurisdiction. (@ Family Court Act [Interstate Family Support Act] 9: 580-207.) On this rccord, petitioner thus makes no showing that the challenged deterniination is arbitrary and capricious. It is accordingly hcrcby ORDERED that the petition is dismisscd. This constitutes thc decision, order, and judgment of the court. Datcd: New York, New York Dcccmber 4,2006 Page -4- Supreme Court Recorri:i 0nl.ine Library - page 5 of 5

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