Ward v NYC Human Resources Admin.

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Ward v NYC Human Resources Admin. 2011 NY Slip Op 33162(U) December 9, 2011 Supreme Court, New York County Docket Number: 401455/11 Judge: Joan B. Lobis 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. NNEDON 1211212011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PART PRESENT Juntfce Upon thr fomgdng papom, it b ordmnd that thli motion la 6 FILED I P Datmd: J.S.C. ............ 1. CHECK ONE .......................l.ml....ll...l...... . IMOnON 18: 0 O W 0 0 DENIED CHECK IP APPROPRIATE: ..l.llll.lll..l...IH.1....1.1......~~~..,....~..~ 0 S E l l U ORDER 2 CHECKA8 APPROPRIATE: 3. CASE DISPOSED . 3 1 . . 1 1 . . . . I . . . . . . 1 1 1 1 1 . . 0 DO NOT POST .. . . - .- . 0 NONPlNALM8P08mON OQR4FmD PART IN CI) OTHER n SUBMIT ORDER 0 FIDUCIARY APPOINTMEW 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 . L CARL WARD, Index No, 401455/11 Petitioner, -against- NYC HUMAN RESOURCES ADMINISTRATION, OFFICE OF CHILD SUPPORT ENFORCEMENT, FILED I . JOAN E LOBIS, J.S.C.: . Petitioner Cr W r , al a d proceeding DEC 1 2 2011 NEW YORK. -. .. x, brings this petitio&~#%&&~8f%flCE C.P.L.R.seeking an order reversing the February I , 201 1 determination (the Determination ) of the Support Collection Unit (I SCU ) of respondent Office of Child Support Enforcement (I OCSE ) of the Human Resources Administration. Thc Determination denied Mr. Ward s request for an administrative review of respondent s issuance of a special notice of a detcrminatian of child support arrears. Respondent cross-moves to dismiss the petition on the grounds that the documentary evidence shows that the Determination w s neither arbitrary and capricious nor an a abuse of discretion; that petitioner fails to state a cause of action; that petitioner is barred f o rerm litigating the issue ofchild support; and that petitioner failed to exhaust his administrative remedies. On May 17,2006, the Hon.Sarah L. h u s s of the Kings County Supreme Court issued a judgment of divorce (the Judgment ) which, & ordered petitioner to pay the sum of four hundred forty five dollars ($445) semi-monthly to his former wife, Brigitte Moore W r ad ( Ms. Moore ),for the support of Imara Ward, born on March 30, 1993, pursuant to a stipulation executed by the parties on January 4, 2006. The payments were to be made through the Kings [* 3] County SCU. As set forth in the cross motion, on or about January 29,2009, Ms.Moore requested that OCSE administratively enforce the child and medical support provisions contained in the Judgment. OCSE then created an account for the matter under the Child Support Management System ( CSMS), under account numberNQ80326A1, to collect, account for, and enforce the child and medical support provisions. By notice dated February 6,2009 (the February 2009 Notice ), SCU notified petitioner that as of that date, he owed support arrears in the amount of $32,930, an amount greater than four months of support. As a result, SCU sat forth that it is authorized by law to notify the Department of Motor Vehicles ( DMV ) to suspend petitioner s driving privileges. The February 2009 Notice stated that in order to avoid DMV suspending his driving privileges, within forty-five days of the date of the notice, petitioner had to either make full payment of the arrears; make a satisfactory payment arrangement with SCU for payment of what he owed in arrears and his current support obligations; send a written challenge regarding the contents of the notice; or provide SCU with proof that his annual income falls below the self support reserve ($14,000 for 2008) or that the amount of his annual income after paying the support obligation would fall below the self support reserve. Petitioner challenged the February 2009 Notice, disputing the amount of the arrm and claiming that his income was below the self support reserve for 2008. On April 20,2009, SCU denied petitioner s challenge to the F e b w 2009 Notice (the SCU Denial ). The SCU Denial set forth that there was a basis for suspending petitioner s driving privileges in New York, because the amount that petitioner owed by April 2009-$35,1SS-and the amount in the February 2009 Notice were equal to at least four months of current support payments, and because petitioner had failed to -2- [* 4] submit required documentation to prove his claim that the amount of income remaining after payment of support obligations would fall below the self support r e m e . The SCU Denial set forth that in order to avoid his license being suspended, within t i t (30)days of the date SCU Denial, hry petitioner m s either pay the arrears in full or make a satisfactory payment arrangement with SCU ut for payment of what he owed in arrears and his current support obligations. Alternatively, if petitioner disagreed with the SCU Denial, he could file m objection with the Kings County Family court. On or about June 8, 2009, and September 15,20 10, petitioner filed petitions in the Queens County Family Court., seeking downward modificationsof his child support obligations. On both occasions, the petitions were dismissed due to petitioner s failure to appear. Respondent sets forth that on August 27,2010, petitioner w s notified by special a notice (the Special Notice ) that he owcd support at in the amount of $33,374.84, and that r m the child support owed would be certified to the federal and state authorities for the Tax Refund Offset/passport Denial process unless he paid his arrcars on or bcforc October 3 1,2010, or unless he challenged the certification by making a written request for review within thirty (30) days of the Special Noticu. Petitioner requested administrative review. On February 1,201 1, SCU issued the Determination, which denied petitioner s request for administrative review on the grounds that a review of his account reflected that the amount due is correct and w s accurately computed. a Although respondent states in the attorney s affInnation underlying the crow motion that it received petitioner s request on November 3,2010, and initially rejected it 89 untimely, it appcars that petitioner s request was reviewed by respondents on the m r t ,nonetheless. eis -3- [* 5] A certified account statement for account number NQ80326A 1 is annexed to the cross motion. Between May 17,2006 (the date of the Judgment) and June 30, 201 1 (the date of the statement), petitioner w s obliged to make one hundred thirty-one (131) semi-monthly payments of a $445, for a total amount of $58,295 in child support. The statement shows that between May 17, 2006 and February 1, 2009, petitioner did not pay his support obligations and accrued arrears of $32,485. After Ms.Moore sought enforcement of the child support order, an employer income execution w s applied in or about September 2009, and some portion of Mr. W r income was a ads used to make payments going fonvard. He has paid a total of$25,359.71 via income execution since September 11, 2009. The total amount of child support petitioner owed through the statement datc-$58,295--minus his total payments through the date of the statment-$25,359.7I~quals $32,935.29. Although neither party states this outright, it is presumed that at some point after denying petitioner s request for administrative review of the Special Notice, OCSE did certify petitioner s arrears to the federal and state authorities for the Tax Refund Offseflassport Denial process. It is unclear whether petitioner s passport has actually been revoked or if he is seeking to preempt the revocation. Some background on the Passport Denial process i necessary to understand the s circumstances of this case. The State of New York is required, by federal law, to maintain the CSMS database to record, enforce, and update child support accounts for orders payable through OCSE,and to report arrears of more than $2,500 to the United States Department of Health and [* 6] Human Services (L HHS ), 42 U.S.C. 654(3 1). If HHS receives a certification by a State agency 5 that an individual owes more than $2,500 in child support m a r s , HHS must report the individual to the State Department, which in turn shall refusc, revoke, restrict, or limit that individual s passport. 42 U.S.C.ยง 652(k). The Passport Denial process has been found to comport with due process requirements because notice and an opportunity to be heard must be provided before a passport is revoked or denied due to child support arrears. Wehtein v. Albri&, 26 1 F.3d 127,135 (2d Cir. 2001). On or about June 3,201 1, petitioner filed the instant proceeding, seeking to annul respondent s decision to cancel or seize his passport and disputing the amount of arrears he owes. He maintains that his income was less than the mount he w s expected to pay in child support. He a states that he paid for his daughter s school tuition, which he states is a form of child support that should be considered. He further maintains that he paid his wife $3,000 from the settlement oftheit divorce, although he claims to have lost the money order receipt. Petitioner argues t h t his mother is eighty-the years old and lives abroad by herself. He argues that without his passport, he will be unable to visit his mother should she become ill. He further maintains that the seizure of his passport is too harsh a punishment. Finally, he maintains that OCSE should have considered that he was eligible for an earned income tax credit in 2007. For the above reasons, petitioner asks the court to revcme OCSE s decision to cancel his passport. -z Although petitioner states in the petition that income tax returns are attached to his petition, the petition does not contain such documentation. -5- [* 7] As a litigant, the court must construe pctitioner's pleadings liberally. v, Citv of Ne\v Yprk,29 A.D.3d 164,168 ( I st Dep't 2006), wm v. Rw, 164 A.D.2d 809, a 8 1 I (1 st Dep't 1990). Petitioner asks the court 10 reverse OCSE's decision to seizc his passport. It is clear that OCSE does not have authority or jurisdiction to seize s passport. To the extent that the Determination denied petitioner's request for administrative review of OCSE's certification of support owed for tax refund offset/passport denial, the petition will be construed as challenging that 6 denial on the grounds specified in C.P.L.R. 7803(3). Petitioner also maintains that the amount of child support that OCSE states that he owes is incorrect. To the extent that the Determination confirmed OCSE's prior calculation that petitioner owes child support arrears in excess of$30,000, the petition will also be construed 8s challenging the calculation under C.P.L.R. 7803(3). 8 Respondent argues, in support of its pre-answer motion to dismiss the petition, that the documentary evidence shows that OCSE is properly enforcing pttitiontr's child support m u , es which it properly determined to be $33,374.84 as ofAugust 27,2010. &g C.P.L.R. Rule 321 1(a)( 1). . Respondent further argues that petitioner has failed to make out a cause of action that the Determination was arbitrary and capricious. C.P.L.R.Rule 321 l(a)(7) and $ 7803(3). Respondent maintains that it is not empowered to reduce petitioner's support obligations or cease enforcement of a child support order; it is m r l the fiduciary in collectin8 child support payments. eey Until and unless a hrther court order is issued modiwng or reducing the arrears or support obligations,OCSE maintains that it is bound to collect petitioner's support obligations in conformity with the Judgment. Respondent further asserts that it has no authority to deny plaintiff a passport, eey it is m r l a certifying agency for the State of New York, which in turn fonvards the certification [* 8] of arrears to the United States Department of Health and Human Scrvices, which then in turn notifies the State Department of the certified arrearage amount. In an Article 78 proceeding, the court s review of an administrative action is limited to a determination of whether that administrative decision was made in violation of lawful procedures, whether it is arbitrary or capricious, or whether it was affected by an error of law. Pel1 Y. Board of E, & 34 N.Y.2d 222 231 (1974); h C.P.L.R. 0 7803(3). In this regard, the court s scope of review is limited to an assessment of whether there is a rational basis for the administrative v. B r m I80 determination without disturbing the underlying factual determinations. N.Y.2d 998, 1001 (1992) (citation omitted). A determination is considered arbitrary when it is made without sound basis in reason and is generally taken without regard to the facts. Eeu 34 N.Y.2d at 23 1 (citation omitted). If the court finds a rational basis for the determination, its inquiry v, C a l o w, 12 N.Y.3d 424, is over and the determination must be sustained. & 43 1 (2009) (citation omitted). Further, the court[] must defer to an administrativeagency srational interpretation of ita own regulations in its area of expertise. I ,(citation omitted). s On a motion to d s i s a special proceeding,the court must determine only whether ims a & the facts az alleged fit within m y cognizablc legal theory. y n P Xu V. N pw y&r.lw nea t pfHe&, 77A.D.3d40,43 (1st Dcp t 2010)(citationomitted);=j&~J~-jreY&OHolQUlOs(llYL v, Bd. of m c , Plz. Co&, 278 A.D.2d 173 (1 st Dep t 2000). Accordingly, the court must afford the pleadings a liberal construction. s - V & Co, 5 N.Y.3d I 1,19 (ZOOS). However, the petition must not consist of only a conclusory assertion of the wrong; -7- [* 9] it must contain factual allegations. V ZOOS), r &pig& 13 N.Y.3d 763 (2009); &Q n Club,54 A.D.3d 658,659-60 (2d Dep t w v. Ion O e d c a l Corn, , 83 A.D.3d 499,500 (I st Dep t 201 1). Furthermore, the court may examine the evidence presented to determine if a material fact as claimed by the [petitioner] v, M a - . . , is not a fact at all . . . . Wa&l Mcd. C~L, A.D.3d 810 (2d Dep t 201 l), 83 I43 N.Y.2d 268, 275 (1977) (other citation omitted). [Tlhe court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as amatter of law. J$&&&u& v, S o. 8 N.Y.3d 318, 324 (2007) (internal quotation marks and citations omitted). If the court considers extrinsic evidence submitted with the motion, the motion should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary matter submitted. [A]llegationa consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, are not presumed to be true and accorded every favorable inference. . . v. Reekman Hill H o u s d ~ tCart, , marks and citations omitted), 257 A.D.2d 76,81 (1st Dcp t 1999) (internal quotation a, 659 (2000). 94 N.Y.2d Respondent s motion to dismiss the petition is granted. The documentary evidence submitted shows that petitioner s child support arrears an currently in axcess of $30,000 and that the arrears have hovered above $30,000 since respondent first started garnishing petitioner s wages in 2009. Therefore, it was not arbitrary and capricious for respondent to confirm in the Determination that petitioner owes child supportmearsin excess of $30,000 and to deny his request for administrative review ofthe Special Notice. Furthermore, respondent is obligated to certify child [* 10] support arrears of more than $2,500 for the Passport Denial process, so the fact that it did 60 neither arbitrary nor capricious. P e t i t i o n t r h failed to set forth factual allegations sufficientto demonstrate that respondent should not have certified his arrears for the Passport Denial process. The court notes that rezpondent is without jurisdiction to reduce petitioner s support obligations, and any reduction in petitioner s support obligations would have to be addrcssed in the form of a motion or petition for a downward modification of the order of support in the Judgment or the arrears that petitioner owes. Accordingly, it is hereby ORDERED that the cross motion to dismiss the petition is granted; and it is further ORDERED that thc proceeding is dismissed in its entirety and the clerk is directed to enter judgment accordingly. ENTER: -9-

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