Opinion
Submitted November 12, 1999
January 18, 2000
In a matrimonial action in which the parties were divorced by judgment dated November 18, 1996, the defendant former wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Rockland County (Miller, J.), dated December 23, 1998, as granted that branch of the motion of the plaintiff former husband which was to recoup overpayments in child support, and directed that she pay the plaintiff the sum of $4,748.
Johnson Cohen, LLP, Pearl River, N.Y. (Mark S. Paige of counsel), for appellant.
Harold A. Seidenberg, Nyack, N.Y., for respondent.
LAWRENCE J. BRACKEN, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiff former husband which was to recoup overpayments in child support is denied.
While the recoupment of child support payments is, under certain circumstances, permissible (cf., Tuchrello v. Tuchrello, 233 A.D.2d 917 ), we agree with the defendant's contention that in the instant case the plaintiff is collaterally estopped from seeking recoupment. The record reveals that the plaintiff sought to recoup the overpayments in child support in a separate Family Court proceeding. By order dated August 7, 1998, the Family Court, Rockland County, terminated the plaintiff's child support obligation effective November 17, 1997, but did not direct the defendant to repay any overpayments, and the plaintiff did not appeal from that order. Accordingly, he cannot seek to recover the overpayment in the Supreme Court (see, Honess 52 Corp. v. Town of Fishkill, 266 A.D.2d 510 [2d Dept., Nov. 29, 1999]).
BRACKEN, J.P., KRAUSMAN, McGINITY, and SCHMIDT, JJ., concur.