Opinion
15122 15121
05-14-2015
In re COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, on behalf of MELVENIA H., Petitioner–Respondent, v. JUAN H. M., Respondent–Appellant.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondent.
Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondent.
FRIEDMAN, J.P., SAXE, RICHTER, MANZANET–DANIELS, JJ.
Opinion
Appeal from order, Family Court, New York County (Clark V. Richardson, J.), entered on or about December 27, 2012, which granted petitioner's objection to the reduction of respondent's arrears to $100, vacated the September 20, 2012 support order, and reinstated the arrears in the amount of $1,104, unanimously dismissed, without costs. Order, same court and Judge, entered on or about June 4, 2013, which denied respondent's motion to vacate an order of support entered on or about January 10, 2011, on default, unanimously affirmed, without costs.
Respondent's June 20, 2013 notice of appeal from the December 27, 2012 order is untimely, and no explanation has been offered for the untimeliness (see CPLR 5513 ; Harasim v. Eljin Constr. of N.Y., Inc., 106 A.D.3d 642, 966 N.Y.S.2d 387 [1st Dept.2013] ).
As to the June 4, 2013 order, respondent failed to demonstrate both a reasonable excuse for his default and a meritorious defense (see CPLR 5015[a] [1] ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Corp., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). Respondent proffered as an excuse that he was not served with notice of entry of the January 10, 2011 order. However, the court's files indicate that the order was mailed to him at the Rikers Island address that he had provided at the previous court appearance. In any event, respondent failed to demonstrate a meritorious defense to petitioner's claim that he was not entitled to an adjustment of the child support arrears that had accrued before the May 2012 filing of his petition for modification. The law is well settled that child support arrears cannot be modified retroactively (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] ). “There is no exception for arrears accrued during a period of incarceration” (Matter of Zaid S. v. Yolanda N.A.A., 24 A.D.3d 118, 804 N.Y.S.2d 742 [1st Dept.2005] ).
We have considered respondent's remaining contentions and find them unavailing.