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In Re Commissioner of Social Services On Behalf of Hasime C., Petitioners-Respondents v. Kastriot D.

New York Supreme Court Appellate Division, First Department


December 20, 2012

IN RE COMMISSIONER OF SOCIAL SERVICES ON BEHALF OF HASIME C., PETITIONERS-RESPONDENTS,
v.
KASTRIOT D., RESPONDENT-APPELLANT.

Matter of Commissioner of Social Servs. v Kastriot D.

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.

Decided on December 20, 2012

Tom, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Clark, JJ.

Order, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about June 25, 2010, which denied respondent father's objection to an order of a Support Magistrate, entered on or about February 23, 2010, denying his motion to vacate an order of support, entered upon his default, and a judgment for support arrears in the amount of $31,826.56, unanimously affirmed, without costs.

Respondent failed to demonstrate a reasonable excuse for his default (see CPLR 5015[a][1]). Before the date of the support hearing, respondent was present in court and advised that he needed to document his financial condition on the next court date or the support order would be based on the children's needs on a public assistance budget, pursuant to Family Court Act § 413(1) (k). Nonetheless, respondent failed to appear at the support hearing. Although he was incarcerated at the time of the hearing, he took no action to notify the court of his unavailability (see Matter of A.C.S. Child Support Litig. Unit v David S., 32 AD3d 724, 724 [1st Dept 2006]).

Respondent also failed to present a meritorious defense (see Matter of Tyieyanna L. [Twanya McK.], 94 AD3d 494, 494 [1st Dept 2012]), since he never established his income for the period before the date of the default order.

The court correctly declined to cancel, reduce or otherwise modify the child support arrears that accrued before respondent's filing of an application for that relief (see Family Court Act § 451[1]; see Matter of Dox v Tynon, 90 NY2d 166, 173-174 [1997]). A grievous injustice does not result from this determination, as respondent's financial hardship was the result of his wrongful conduct leading to his incarceration (see Matter of Knights v Knights, 71 NY2d 865, 866-867 [1988]).

We have considered respondent's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2012

CLERK

20121220

© 1992-2012 VersusLaw Inc.



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