Order, Family Court, New York County (Jody Adams, J.), entered on or about March 30, 2007, which, in a child support proceeding brought by the Commissioner of Social Services as assignee of the child's mother, denied in part respondent father's objections to a December 2006 support order directing him to pay child support, and order, same court and Judge, entered on or about August 19, 2008, which denied all of the father's objections to (a) a November 2007 order denying his motion for summary judgment to dismiss this proceeding on the ground of judicial estoppel, and (b) a January 2008 child support order directing him to pay child support without a deviation from the Child Support Standards Act (CSSA) guidelines, affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Andrias, McGuire, Manzanet-Daniels, JJ.
The father's various arguments based on the mother's alleged fraudulent receipt of public assistance benefits lack merit. The doctrine of judicial estoppel does not apply to bar the proceeding because, although the Commissioner, after commencing this proceeding, did inconsistently refer the mother's case to the District Attorney for a possible welfare fraud prosecution, the District Attorney's decision not to prosecute was not a prior judgment, or indeed any kind of decision, in the Commissioner's favor vindicating a prior position that the mother had committed welfare fraud (see Olszewski v Park Terrace Gardens, Inc., 18 AD3d 349, 350-351 ).
Nor should the case have been removed from Family Court to Supreme Court so as to allow the father to raise the issue of the mother's alleged fraud. The proceeding was properly brought in Family Court pursuant to Family Court Act § 571 (see generally Matter of Commissioner of Social Servs. v Segarra, 78 NY2d 220, 224 ), and, as Family Court pointed out, the father's remedies for the mother's alleged ineligibility for public assistance are administrative, not judicial.
The father's objection to the Support Magistrate's quashing of his so-ordered subpoena for the Commissioner's public assistance records was properly denied because the father failed to demonstrate his entitlement to the confidential records sought therein under a specific regulatory exception (see D & Z Holding Corp. v City of N.Y. Dept. of Fin., 179 AD2d 796, 798 , lv denied 79 NY2d 758 ). The failure to give the father the required eight days' notice of the motion to quash was harmless, and, as Family Court also noted, the record indicates that the father neither objected to the Commissioner's affirmation in support of the motion nor requested an adjournment to respond to the motion.
Finally, the Commissioner's alleged failure to contact the Department's Inspector General's Office about the mother's alleged fraud cannot be deemed frivolous within the meaning of 22 NYCRR § 130-1.1(c) since the Commissioner referred the alleged fraud to the District Attorney's Office and the District Attorney decided not to pursue the matter.
The mother's sworn testimony confirming the statements of the Commissioner's attorney was sufficient to meet the Commissioner's burden of proving that the mother is a recipient of public assistance (cf. Matter of Eason v Eason, 86 AD2d 666  [recipient of public assistance did not testify as to her needs or those of her children]).
The Support Magistrate properly concluded that the father was not entitled to an automatic deviation from the CSSA guidelines simply because of the parties' equal sharing of custody. Indeed, [s]hared custody arrangements do not alter the scope and methodology of the CSSA" (Bast v Rossoff, 91 NY2d 723, 732 ). The father failed to preserve his argument that the Support Magistrate, in balancing his resources, improperly used a self-support reserve for an individual, rather than a support reserve for a family of two, and we decline to review it. All concur except Manzanet-Daniels, J. who dissents in a memorandum as follows:
MANZANET-DANIELS, J. (dissenting)
Because I believe that respondent-appellant father was deprived of his due process right to present evidence concerning the mother's financial means, and because I believe, at a minimum, that the amount of child support should be adjusted to reflect the fact that the parties have a split custody arrangement, I dissent.
In this proceeding, the Commissioner of Social Services, as assignee of the non-party mother, seeks child support from appellant father for the couple's two children, claiming that the mother's active welfare case constitutes a "change in circumstances" mandating revision of the parties' previously negotiated agreement, pursuant to which the mother and father waived the right to child support from each other. It was not claimed that there had been a change in the financial circumstances of the mother, other than the fact of the opening of a welfare case. Because the father was denied the opportunity to obtain any discovery concerning the mother's welfare case, it could not be verified that there had, in fact, been a change in circumstances in the mother's finances so as to warrant a modification of the parties' support decree.
Appellant father asserted that the mother had committed and continues to commit welfare fraud. The Commissioner, acting on information provided by appellant, referred the matter to its fraud investigation unit and ultimately to the District Attorney's Office, which declined to prosecute.
Appellant's principal claim on appeal is that he was deprived of due process by the Family Court, which denied him the opportunity to contest the issue of whether the mother was lawfully on welfare. The Family Court, inter alia, precluded appellant father's attorney from cross-examining the mother regarding her entitlement to welfare, granted the Commissioner's oral application to quash a subpoena seeking production of records relating to the mother's welfare application for in camera inspection, and found that the ...