Ford v Department of Social Servs.

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[*1] Ford v Department of Social Servs. 2013 NY Slip Op 52045(U) Decided on December 2, 2013 Supreme Court, New York County Stallman, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2013
Supreme Court, New York County

Clifton Laurell Ford, Petitioner,




For plaintiff

Marjory Cajoux, Esq.

The Law Offices of Marjory Cajoux

406 Atlantic St.

Brooklyn, NY 11217

(718) 237-0411

For defendant New York State Office of Child Support Enforcement

Eric T. Schneiderman, Attorney General

Of Counsel: Garvin V. Smith, Assistant Attorney General

120 Broadway, 24th Fl

New York, NY 10271


For defendants New York City Child Support Enforcement Unit, Department of Social Services and Support Collection Unit:

Michael Cardozo, Esq., Corporation Counsel for the City of New York

Roy A. Esnard, Esq., Human Resources Administration Attorney

Elizabeth Haynes, Esq., Of Counsel Human Resources Administration Office of Legal Affairs Child Support Litigation Unit

180 Water St 18th Fl

New York NY 10038


Michael D. Stallman, J.

Petitioner Clifton Laurell Ford brings this Article 78 proceeding regarding various child support enforcement actions taken against him for failure to pay child support arrears. Respondents claim that petitioner owes $400,000 in child support arrears accumulated over twenty-four years. Petitioner disputes this claim, alleging that respondents miscalculated the amount he owes. Petitioner's nonpayment of arrears resulted in enforcement actions, including suspension of his driver's license, an income execution, a levy on his bank account, seizure of his tax refund, and restrictions on his passport. Petitioner seeks an order:

(1) directing an audit of his child support account; (2) directing credit for all child support payments he allegedly made toOCSE;

(3) lifting the levy on his bank account;

(4) vacating the income execution; and (5) lifting the suspension of his passport and driver's license.

Defendant New York State Office of Child Support Enforcement (State Respondent) cross-moves to dismiss the petition as against it (Motion Seq. No. 001). Defendants New York City Office of Child Support Enforcement, Department of Social Services, and Support Collection Unit (collectively OCSE) move to dismiss the petition as against them (Motion Seq. No. 002).


The genesis of this Article 78 proceeding can be traced back to proceedings beginning over twenty years ago regarding petitioner's child support obligations for his daughter, Ashley Elizabeth Ford, born xx/xx/1988. In 1989, Janice Adel Dye, the mother and custodial parent of Ashley, filed a petition requesting child support payments from petitioner. On June 13, 1990, the New York Family Court entered an Order of Filiation declaring petitioner to be the father of Ashley Elizabeth Ford. (Haynes Affirm. Ex A [1990 Order].) On December 4, 1990, New York Family Court ordered petitioner to pay $950 per month for child support for his daughter. Retroactive support was set at $7600. Payments were to be made through OCSE. (See Haynes Affirm. Ex B.)[*2]

On December 17, 1990, petitioner filed a petition in New York Family Court to vacate the Order of Filiation. (See Haynes Affirm. Ex C.) Because the results of the court-ordered genetic marker testing indicated a probability of 99.84% that petitioner was the father of Ashley, the Family Court (Schnabel, J.) dismissed the petition. (See Haynes Affirm. Ex D.)

On June 22, 1993, pursuant to a petition filed on December 8, 1992, New York Family Court entered a money judgment against petitioner in the amount of $33,250 for arrears for failure to pay child support and an order was entered directing petitioner to pay $750 for the basic child support of his daughter and $720 for child care and educational expenses, for a total of $1470 per month. (Petition Ex 1 [1993 Order].)

On September 27, 1996, OCSE notified petitioner, who at the time owed arrears of $99,763.09, that his driver's license would be suspended for failure to pay child support. (Haynes Affirm. ¶ 8.) Petitioner's driver's license was suspended on November 29, 1996.

On April 25, 2005, Westchester Family Court denied petitioner's request for a downward modification of child support, finding that the "respondent herein credibly challenged petitioner's claim of a lack of income and of a lack to be gainfully employed," and petitioner "failed to demonstrate his total income, assets[,] resources and liabilities, and to the least extent, how he did in fact support himself and perhaps his parents in Jamaica while he was there for ten years." (Haynes Affirm. Ex F [2005 Order].)

On August 11, 2008, petitioner sent a letter to OCSE requesting (1) a review of OCSE's decision to direct the Social Security Administration to withhold $277.80 from his monthly benefit payment of $600 and (2) a review of the amount OCSE claimed petitioner owed in child support arrears. (Petition Ex 4 [2008 Letter].) The letter stated that petitioner's only source of income was social security benefits (which petitioner's attorney claimed that petitioner could barely live on), and that petitioner believed he had not been given credit for previous child support payments. (Id.) Petitioner alleges that he did not receive a response from OCSE. (Petition ¶ 21).

On April 20, 2009, petitioner filed a petition for relief from support payments and commitment in New York Family Court. (Petition Ex 6). By order dated June 15, 2009, petitioner's child support obligation was terminated effective March 4, 2009, without prejudice to arrears. (Haynes Affirm. Ex H [2009 Order].) The Family Court stated that, "[p]etitioner is directed to [Support Collection Unit] to adjust arrears if petitioner has proof of any additional payment and is further [*3]directed to [Support Collection Unit] regarding the amount of payment of arrears." (Id.)

On July 29, 2009, petitioner submitted a request to OCSE to have the amount on the income execution on his social security benefits lowered due to alleged economic hardship. (Haynes Affirm. ¶ 11.) On September 8, 2009, after reviewing petitioner's financial hardship application, OCSE lowered the income execution amount to $25 per month, which petitioner is still currently paying towards child support arrears. (Id.)

On September 30, 2009, petitioner contacted the Special Inquiry Unit of OCSE and stated that he would send proof of payments that were not credited to his account. (Id. at ¶ 12.)He also inquired as to what actions he had to take in order to be removed from the passport denial process and whether an agreement could be made to remove him from the process. (Id.) The matter was referred to the Enforcement Unit, and petitioner was informed that he would have to pay all of his child support arrears before being removed from the passport denial process. (Id.)

On October 20, 2009, petitioner faxed three documents to the Special Inquiry Unit as proof of payments not credited to his account: (1) a Westchester Family Court Findings of Fact dated April 25, 2005 that indicated testimony that petitioner had paid a $70,000 purge amount to satisfy delinquent child support arrears and avoid jail; (2) a letter from the custodial parent dated March 3, 2003 requesting credit be given to petitioner in the amount of $5000 for child support payments; and (3) a letter from the custodial parent dated June 28, 2003 requesting petitioner be given credit in the amount of $800 for child support payments. (Id. at ¶ 13.) On the same day, after reviewing the faxed documents, OCSE informed petitioner that: (1) OCSE would not credit the alleged $70,000 payment unless OCSE received a court order to credit the amount; (2) OCSE had already given petitioner credit for the $5000 in response to a notarized letter signed and submitted directly to OCSE by the custodial parent on March 3, 2003; and (3) OCSE would not credit petitioner's $800 payment to the custodial parent because of OCSE's policy of giving credit for direct payment only once. (Id. at ¶ 14.)

On May 10, 2010, petitioner commenced an action in the United States District Court, Southern District of New York against the respondents herein and Dye, the custodial parent, seeking to: (1) vacate the 1993 Order against petitioner and in favor of Dye and (2) vacate approximately $400,000 in arrears petitioner owes to Dye pursuant to the 1993 Order. (Petition Ex 7 [SDNY Opinion], at 2.) [*4]In the complaint, petitioner alleged that he had paid Dye at least $129,000, which Dye did not report to OCSE and that OCSE had not credited to his arrears. (Id.) He also alleged that the defendants miscalculated the amount of money he owed to Dye. (Id.) On March 22, 2011, the District Court dismissed the complaint. (Id.)

On May 27, 2011, OCSE notified petitioner that his bank account would be restrained. (Haynes Affirm. Ex I.) Petitioner submitted a claim that the restrained funds were exempt because the deposits were supplemental social security income payments, but OCSE alleged petitioner did not submit any proof with his claim. (Haynes Affirm. Ex J.) On June 15, 2011, OCSE denied petitioner's claim. (Haynes Affirm. Ex K.)

On September 12, 2012, OCSE notified petitioner that his child support arrears would be certified for the tax refund offset and passport denial process. (Haynes Affirm. Ex M.) On October 22, 2012, OCSE received petitioner's request for an administrative review of OCSE's decision to place him in the tax refund offset and passport denial process in which he checked the box that documentation "supports my claim that my child support was not accurately computed," but OCSE asserts that petitioner did not submit any documentation to that effect with the claim. (Haynes Affirm. Ex N.) On November 27, 2012, after having conducted an administrative review of petitioner's child support account and arrearages, OCSE denied petitioner's challenge. (Haynes Affirm. Ex O.) Thereafter, petitioner commenced this Article 78 proceeding on March 27, 2013.

On July 25, 2013, OCSE conducted an audit of petitioner's account and presented the results incorporated in an Accounts and Records Statement dated July 26, 2013. (Haynes Reply Affirm. Ex A.) OCSE conducted another audit of petitioner's account and presented the results in a statement dated October 17, 2013. (Haynes Reply Affirm. Ex B.)


The State Respondent argues that the petition should be dismissed because (1) petitioner's claims are barred by res judicata and collateral estoppel; (2) the State Respondent is not a proper party to bring the action against because the State Respondent did not make any of the determinations at issue; and (3) petitioner's claims are time-barred.

OCSE argues that the petition should be dismissed because (1) petitioner's claims are barred by res judicata and collateral estoppel; (2) petitioner's claims are time-barred; (3) OCSE's actions were not arbitrary or capricious nor made in error of law (4) petitioner failed to join the custodial parent as a necessary party; (5) petitioner's alleged payments were improperly made, violating the Family Court [*5]1993 Order; and (6) petitioner does not have a clear legal right to be given a credit by OCSE, to have the income execution and bank account restraint vacated, or to have suspensions on his driver's license and passport lifted.

Res Judicata and Collateral Estoppel

The State Respondent argues that res judicata bars all claims that petitioner made payments for which he was not given credit, because he could have raised those claims in the 2009 petition filed with the Family Court. The State Respondent contends that petitioner is collaterally estopped from asserting that it is liable for correcting the amount of petitioner's arrears because the District Court stated, "[State Respondent] is not responsible for the amount of arrearage owed." (SDNY Opinion at 16.) OCSE argues that res judicata and collateral estoppel bar this proceeding "since the petitioner had a full opportunity to claim a credit before the Support Magistrate at each hearing he attended." (Haynes Affirm. ¶¶ 35-36). "[U]nder res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action. As a general rule, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy."

(Landau v LaRossa, Mitchell & Ross, 11 NY3d 8, 12-13 [2008].) "The concept of collateral estoppel is somewhat narrower, requiring two distinct elements: that an issue in the present proceeding be identical to that necessarily decided in a prior proceeding, and that in the prior proceeding the party against whom preclusion is sought was accorded a full and fair opportunity to contest the issue."

(Matter of Hofmann, 287 AD2d 119, 123 [1st Dept 2001] [internal quotation marks omitted].)

Petitioner's claims are not barred by res judicata or collateral estoppel because in the District Court case, petitioner's claims were not decided on the merits. The District Court dismissed the action holding that it did not have subject-matter jurisdiction to review and vacate a state court order and petitioner failed to properly serve the State Respondent. (SDNY Order at 8, 17.) As for the Family Court 2009 Order, res judicata and collateral estoppel do not apply as that was not a final decision as to the correctness of the amount of arrears, because the Family Court directed petitioner to OCSE regarding arrearages owed. (2009 Order.)

State Respondent as Proper Party

This Court agrees with the State Respondent that petitioner's claims should [*6]not be directed against the State Respondent, because OCSE made all of the determinations at issue. Although the District Court did not decide petitioner's claims on the merits, the District Court noted that petitioner "would still have failed to state a claim against the [State Respondent], because the actions on which [petitioner's] claim rests [are] attributable to the local [Support Collection Unit] and not to the State. . . [Petitioner's] requests . . . [do] not implicate [the State Respondent's] ministerial role in supervising the overall child support program in the State of New York." (SDNY Order at 16-17.) Other courts have similarly opined that the State Respondent is not an indispensable party in Article 78 proceedings regarding child support enforcement actions. (See Torres v Support Collection Unit of New York City Dept. of Social Servs., 159 Misc 2d 629, 636 [Sup Ct, NY County 1993]; Hosni v Hansell, 2011 WL 1527200, 2011 NY Misc LEXIS 1779, *3 [Sup Ct, NY County, April 12, 2011, Index No. 400618/11].)

Moreover, 18 NYCRR 347.1 states that "[t]he [New York State] Office of Child Support Enforcement . . . shall be responsible for the supervision of the activities of social services officials and other State and local officials relative to

. . . the enforcement and collection of [] obligations. . ." 18 NYCRR 347.3 further clarifies that the local agencies are responsible for enforcement of child support obligations, stating "[e]ach social services district must establish a single organizational unit . . . which must be responsible only for that district's activities in . . . enforcing and collecting support obligations." Therefore, the petition is dismissed as to the State Respondent.

Statute of Limitations

An Article 78 proceeding must be brought within four months from when an administrative determination becomes final and binding upon a petitioner. (CPLR 217.) "An administrative decision becomes final and binding when a petitioner seeking review has been aggrieved by it." (Matter of Yarborough v Franco, 95 NY2d 342 [2000].) To the extent that petitioner challenges the suspension of his driver's license, OCSE's determination to lower the income execution, and the levy on his bank account, these claims are time-barred. Petitioner's driver's license was suspended on November 29, 1996, the decision by OCSE to lower petitioner's amount of income execution to $25 was made on September 8, 2009, and petitioner's claim for exempt funds to the restraint on the bank account was denied by OCSE on June 15, 2011. Each of these agency determinations made by OCSE were final and binding, yet petitioner did not bring an Article 78 proceeding until March 27, 2013, which is well beyond the four month statute of limitations for the aforementioned determinations. The only determination which is not time barred [*7]is OCSE's decision, dated November 27, 2012, to place petitioner in the tax refund offset and passport denial process. Because the proceeding was commenced on March 27, 2013, it is not time barred.

Arbitrary and Capricious Standard

"In reviewing administrative proceedings in general," courts are "limited to considering whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.'" (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363 [1986], quoting CPLR 7803 [3]; see also Matter of Lobaina v Human Resources Admin., Office of Child Support Enforcement, 79 AD3d 884 [1st Dept 2010].) "The proper test is whether there is a rational basis for the administrative orders . . . .Rationality is what is reviewed under . . . the arbitrary and capricious standard." (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974].) Here, OCSE had a rational basis for its determination to seize petitioner's tax refund and place petitioner in the passport denial process.

OCSE is statutorily mandated to seize petitioner's tax refund to enforce petitioner's outstanding child support arrears by way of state and federal tax refund offset. (See 42 USC § 666 [a] [3][A]; Social Services Law § 111 [b][7],[8]; 18 NYCRR 346.9.) "The [Support Collection Unit] shall administer the process established by the State Office of Child Support Enforcement . . . for the purpose of satisfying past-due child support obligations through the offset of Federal income tax refunds, New York State income tax refunds and city income/earnings tax refunds due as a result of overpayments made to the Internal Revenue Service (IRS) and/or New York State Department of Taxation and Finance." (18 NYCRR 346.9.) Under 42 USC § 664 (b) (2) (A), the threshold amount for federal tax offset is $500 in child support arrears. At the time that OCSE notified petitioner that his tax refund would be seized, petitioner owed over $400,000 in child support arrears, which is clearly above the threshold. Therefore OCSE had a rational basis to seize petitioner's tax refund.

The certification of arrears to the federal government for tax refund offset automatically triggers the passport denial process. (42 USC §652 [k].) "The Secretary of State shall, upon certification by a State agency [that an individual owes arrearages of child support in an amount exceeding $2500], refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual." (Id.) At the time that OCSE placed petitioner in [*8]the passport denial process, petitioner owed arrearages exceeding the $2500 threshold. Therefore OCSE had a rational basis to place petitioner in the passport denial process.

The Court may not rely on evidentiary submissions that were not before the agency; thus petitioner may not submit to the Court documentation that was not given to OCSE. (See Matter of L & M Bus Corp. v New York City Dept. Of Educ., 71 AD3d 127, 136 [1st Dept 2009].) In any event, petitioner did not submit to the Court any documentation he gave to OCSE to challenge OCSE's determination to place him in the tax refund offset and passport denial process. (See Petition Ex 9.) However, assuming for the sake of argument that petitioner received credit for the $70,000 of child support payments petitioner alleges he made, petitioner's arrearages would still be above the thresholds for seizing his tax refund and restricting his passport. Moreover, even if petitioner had a change in circumstances which would reduce his arrearages below the aforementioned threshold amounts, OCSE can only send the appropriate notification to the federal government. The ultimate decision of the federal government is not within the control of the respondents or the Court. Thus the respondents have demonstrated entitlement to dismissal of the petition.

Audit of Petitioner's Account

Petitioner's request to compel OCSE to conduct an audit is moot because OCSE has already conducted two separate audits of petitioner's account. (See Matter of Covington v Sultana, 59 AD3d 163 [1st Dept 2009].) On July 25, 2013, OCSE conducted an audit of petitioner's account and presented the results incorporated in an Accounts and Records Statement (A & R) dated July 26, 2013. (Haynes Reply Affirm. Ex A.) OCSE conducted another audit, allegedly incorporating data from microfiche research on petitioner's individual payments prior to April 20, 1999. (Haynes Reply Affirm. ¶ 8.) The A & R dated October 17, 2013 indicates petitioner made $600 in payments prior to April 20, 1999. (Id.)

Failure to Join Custodial Parent as a Necessary Party

As to OCSE's argument that petitioner failed to join the custodial parent as a necessary party, OCSE's decision to seize petitioner's tax refund and restrict his passport do not affect the custodial parent. Whether the custodial parent would be inequitably affected by the other issues raised in this case is purely academic.

The Court need not reach respondents' remaining contentions.


Accordingly, it is hereby ordered that OCSE's motion to dismiss and State Respondent's cross motion to dismiss are granted; and it is further [*9]

ADJUDGED that the petition is denied and the proceeding is dismissed.

Dated: December 2, 2013

New York, New York

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