Opinion
2012-12-20
In re COMMISSIONER OF SOCIAL SERVICES on behalf of HASIME C., Petitioners–Respondents, v. KASTRIOT D., Respondent–Appellant.
Kenneth M. Tuccillo, Hudson, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Kathy H. Chang of counsel), for respondent.
Kenneth M. Tuccillo, Hudson, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Kathy H. Chang of counsel), for respondent.
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 ( seeCPLR 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 A.D.3d 724, 724, 821 N.Y.S.2d 172 [1st Dept.2006] ).
Respondent also failed to present a meritorious defense ( see Matter of Tyieyanna L. [ Twanya McK.], 94 A.D.3d 494, 494, 941 N.Y.S.2d 498 [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 ( seeFamily Court Act § 451 [1]; see Matter of Dox v. Tynon, 90 N.Y.2d 166, 173–174, 659 N.Y.S.2d 231, 681 N.E.2d 398 [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 N.Y.2d 865, 866–867, 527 N.Y.S.2d 748, 522 N.E.2d 1045 [1988] ).
We have considered respondent's remaining contentions and find them unavailing.