Matter of Moringiello v Human Resources Admin. Off. of Child Support Enforcement

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Matter of Moringiello v Human Resources Admin. Off. of Child Support Enforcement 2019 NY Slip Op 30980(U) February 7, 2019 Supreme Court, Richmond County Docket Number: 080101/2018 Judge: Wayne M. Ozzi Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] Of f ice of the Richmond County Cler k - Page 2 ' of 9 4 / 17/ 2019 10 : 0 4:41 AM . ' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---------------------------------------------------------------------- X In the Matter of the Application of Pa rt 23 MICHAEL MORINGIELLO, Present: Petitioner, HON. WAYNE M. OZZJ -against- DECISION AND ORDER Index No. 08010112018 HUMAN RESOURCES ADMINISTRATION OFFfCE OF CHILD SUPPORT ENFORCEMENT, Motion Nos: 4726-001 5028-002 Respondent. --------------·------·--·-----·------·--------·--·----··--------------X The following papers numbered 1 to 3 were fully submitted on the 13111 day of December 2018: Papers Numbered Petitioner's Order to Show Cause inn Special Proceeding ::o (Verified Petition, Affidavit of Merit, Emergency Affimlotion) ~ 5 (Dated: November2, 2018) .... ... .. ... ........... .. .... .. ... .. ... .. ... ... ..... .. ... ... ~....~ .... l Respondent's Notice of Cross Motion lo Dismiss ci -._; (Attorney Affirmation in Support of Cross Motion to Dismiss and in Oppositi<m g to the Extension of the Temporary Restraining Order, Affidavit of Kashwayne Burnett, Memorandum of Law in Support) > -(Dated: November 30, 2018) ... ... ... .. ...... .. . ......... .. ... ..... .... .... ... ... . ..... ,,g, .. :.:·; . . .. 2 Petitioner's Affirmation in Opposition to Cross-Motion ~ (Dated: December 12, 2018) .. ... ...... ......... . ....... ....... .... .... .. ... .. . .... . .. .... ... ~ .... 3 r:: Upon lhe foregoing papers, the application of Petitioner, Michael Moringiello, (Motion No: 4726-00 l) pursuant lo Article 78 of the CPLR to, inter alia, review, reverse, vacate and set aside a child support arrears determination made by Respondent anc.l to preclude Respondent from seeking payments to satisfy arrears on the ground that Petitioner overpaid child support and is owed a credit, is denied; and the cross-motion by Respondent (Motion No. 5028-002) to dismiss the petition pursuant to CPLR §§32 11(a)(!), (2), (5), (7) and (10) is granted. [* 2] Office of the Richmond County Clerk - Page 3 of 9 4 / 17/2019 10:04:41 AM In the Matter of the Application of MICHAEL MORJNGIELLO Petitioner and his ex-wife, Catherine Buonofiglia, divorced on December 7, 1995. Two children were born of the mnrriagc: Jodi, whose date of birth is November 28, 1989, and Ashly, whose date of birth is December 18, 1992 (i.e., Petitioner's daughters are currently age 29 and 26 respectively). Petitioner has been obligated to pay child support in the amount of $113 .00 per week since August 12, 1994, pursuant ton New York City Family Court Order of that date, which also provided for retroactive suppo1t in the amount of $7,629.00 as of August 11, 1994 (see Respondent's Exhibit A). TI1e instant petition originates from two Orders made on August 16, 2013 by Kings County Support Magistrate, Nicholas J. Palos, one of which entered a money judgment ngainst Petitioner for arrears in the amount of $13,002.00 (Respondent's Exhibit A), and the other which modified an October 30, 2006 New York City Family Court Order (see Respondent's Exhibit B) changing Petitioner's child support obligation for Ashly, his unemancipated child, to $432.00 per month, effective September 26, 2012. Petitioner appeared and presented proof in defense of the September 26, 2012 application brought by his ex-wife in Family Court, Kings County (id.). By correspondence dated June 5, 2018 (see Petitioner's Exhibit G), Petitioner asked Respondent to "review al l [of my] records and the enclosed documents of proof.. . [to see] that an overpayment for Jodi Mori ngiello from November 28, 20 I0-2012" was not credited, "which overpayment should have been applied for Ashly Moringiello after Jodi turned 21 years of age" (Jodi turned age 21 on November 28, 2010). Petitioner requested an audit of his account arguing that his "case is paid in full" (id.) since he had paid support for Jodi until she reached the age of 23. 2 [* 3] Office of the Richmond County Clerk - Page 4 of 9 4 / 17 / 20 19 10:04 : 41 AM ln the Mnttcr of the Applicntion of MICHAEL MORINGIELLO On August 14, 2018, Respondent notified Petitioner, by con-espondence entitled "Child Support Account Resolution Notice," that he owed child suppo1t arrears in the amount of $17,392.54 (sec Petitioner's Exhibit A). On November 8, 2018, Petitioner moved by Order lo Show Cause and Verified Petition for an Order from this Court reviewing, reversing, vacating and setting aside Respondent' s determination that $17,392.54 is owed by Petitioner, on the ground that Respondent acted arbitrarily and capriciously in making said determination and, further, that " [p]etitioner is entitled to a refund because he overpaid in the amount of $15,000.00 1 in child support ... and to this day creditors are taking money out of his account" (see November 2, 2018 Verified Petition, para 19; November 2, 2018 Affidavit of Merit, para 7). This Court temporarily stayed enforcement of the August 14, 2018 detem1ination, and set n return date for Petitioner's application of December I 3, 2018. In the interim, Respondent cross moved to dismiss the Petition pursuant to: (1) CPLR §3211(a)(l0) [failure to join the custodial parent, a necessary party in this case]; (2) CPLR § 32 I 1(a)( I), (the defense is founded upon documentary evidence, i.e., enforcement of a valid order of support]; (3) CPLR §§3211 (n)(2) and (a)(7), (the Comt lacks subject matter jurisdiction and Petitioner's failure to state a claim upon which relief may be granted, since Respondent's detennination is not final and may be ndcquately reviewed by Family Cou1t pursuant to CPLR 7801]; (4) CPLR §321 I (a)(5), that the New York City Family Court has already made a determination and, l'IS such, the matter is barred by res judicata and collateral estoppel; and (5) CPLR 7803(3), [Respondent's decision was not arbitrnry and capricious, as it is statutorily obligated to administratively enforce valid child support orders). 1 The Petition does not include n specific brenkdown of the nlleged S 15,000.00 overpayment. 3 [* 4] ottice of the Richmond County Clerk - Page 5 ot 9 4/17/2019 10:04:41 AM In the Matter or the Application of MICHAEL MORINGlELLO In support of its cross motion the Respondent submits proof through, inter a/ia, the November 30. 2018 aflidavit of its nccount supervisor, Kashwaync Burnett, of the entry of lhe $13,002.00 money judgment, an explanation of the accumulation of statutory interest upon the judgment, documentation detailing the amount of the petitioner's child support arrears, payment history (inclusive of checks returned for insufficient funds), and the manner in which Petitioner's payments were apportioned toward his support. Respondent's proof sel forth that Petitioner currently owes An-ems in the corrected amo unt of$15,44 l.34. It is well settled that "[a) special proceeding under CPLR Article 78 is nvailable to challenge the actions or innction of agencies and oflicers of state and local government" (Maller of Gottlieb v. City o.f New York, 129 A03d 724, 725; see Malter of Luczaj v. Bortnik, 91 AD3d 872, 873). The standard of judicial review is whether the administrative dete1mination was made in violation of lawful procedure, was affected by an error of low, or was arbitrary and capricious or an abuse of discrelion (see CPLR 7803[3); Moffer ofGolflieb v. City of New York, 129 AD3d at 725; Mafler ofJP & Assoc. Corp. v. New York State Div. o.fHous. & Community Renewal, 122 AD3d 739, 739). "An arbitrary detennination is one thal is without n sound basis in reason and is made without regard to the facts" (Maller ofGolllieb v. City ofNew _York, 129 AD3d at 725; sr!e Maller of Wooley v. New York State Dept. u.fCorrectionol Servs., 15 NY3d 275, 280; Maller of Pr!// v. Board of Educ. of Union Free School Dist. No. J of Town:r of Scorsdale & Mamaroneck. We.ftchester Co1111ty, 34 NY2d 222, 23 1). "[l] r the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (Maller ofDeerpark Forms, LLC v. Agric11/t11rol & Farmland Protection Bd. of Orange County, 70 AD3d 1037, 1038, quoting Maller ofPeckham v. Calogero, 12 ~Y3d 424, 43 1). 4 [* 5] Of fic e o f the Ric hmond County Clerk - Page 6 of 9 4 / 17/ 2 019 10: 04 : 41 AM In the Matter of the Anplicntion of MICHAEL MORINGIELLO Here, Respondent based its dete1mination upon the proof it presented by way of, e.g., entry of the money judgment, accumulation of the statutory interest, and Petitioner's payment history inclusive of those payments which were returned for insufficient funds. Petitioner's failure to establish that Respondent should be eslopped from collecting interest on the judgment(s), coupled with the rational and factual basis upon which Respondent made its determination, requires that arrears of $15,441.34 (see November 30, 2018 affidavit of Kashwayne Burnett, para 11) be upheld I (see Maller ofCounty of Orange [Al Turi Landfill, Inc.], 75 AD3d 224, 238). The Court is mindful that on a motion pursuant to CPLR §3211 (a)(7), "only the petition is considered, all of its allegations are deemed true, and the petitioner is accorded the benefit ofevery possible inference (Matier ofBrown v. Foster, 73 AD3d 917, 918; see Matter ofMiller v. Mulligan, 73 AD3d 781, 783; Maffei' of Bloodgood v. Town of Huntington, 58 AD3d 619, 621). "Under CPLR §3211 (a)( 1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v. Martinez, 84 NY2d 83, 88; see Teiller v. Pollack & Sons, 288 AD2d 302). Here, Petitioner failed to set forth allegations sufficient to make out a claim that Respondent's determination was "made in violation of lawful procedure, was affected by an error of lnw, or was arbitrary and capricious or an abuse of discretion" (CPLR 7803{3]; see Matier of Miller v. Mulligan, 73 AD3d at 783). The documentary evidence submitted by respondent conclusively established a defense to this proceeding as a matter of law (see Maller of Owens Rd Assoc., LLC v. Town Bd. of Town of Goshen, 50 AD3d 908). Thus, the Petition is dismissed pursuant to CPLR §§321 I (a)(l ) and (a)(7). The foregoing grounds for dismissal notwithstanding, Petitioner has failed to join custodial parent, Catherine Buonofiglia, as a necessary party, in contravention of CPLR 3211 §(a) (10), and 5 [* 6] Office of the Richmond County Clerk - Page 7 of 9 4 / 17/2019 10:04:41 AM .• In the Matter of the Apnlicntion of MICHAEL MORINGIELLO accordingly the relief sought may not be granted because annulment of arrears without the presence of a necess."lry party would be improper. Finally, the temporary restrainjng order previously issued is hereby vacated inasmuch as there has been no showing that petitioner will be irreparably hanned (irreparable hann being defined as "imminent, not remote or speculative" [see Family-Friendly Media, Inc. v. Recorder Tel. Network, 74 AD3d 738; see Maller o.f G. Bldrs. IV, LLC v. Madison Park Owner, LLC, 84 AD3d 694]) absent the temporary restraint (36'" & Second Tenants Assoc. v. New York State Div. of f-lous. & Co11111111nily Renewal, 243 AD2d 321 [l 11 Dept. 1997]). Here, the allegations giving rise to this Court's award of a temporary restraining order (i.e., lo protect Petitioner from forther injury) have been resolved by Respondent's proof, and the stay is accordingly lifted. Accordingly, it is ORDERED, that the motion by Respondent, Human Resources Administration Office of Child Support Enforcement, to dismiss the petition is granted; and it is further ADJUDGED, that the petition is denied, and the proceeding is dismissed. I: "·· J. S. C. '""': HON. WAYNE M. OZll '<- '>' J.S.C. 6

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