Opinion
Submitted October 24, 2000.
November 21, 2000.
In a proceeding pursuant to CPLR 5241 to vacate an income execution, the appeal is from so much of an order of the Supreme Court, Nassau County (Marano, J.), dated October 1, 1999, as, upon granting the petition, in effect, canceled the support arrears owed by the petitioner.
Debbie Eisenstadt, Plainview, N.Y., appellant pro se.
Marino Bernstein, Oyster Bay, N.Y. (Jean M. Van Riper of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, WILLIAM D. FRIEDMANN, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the support arrears owed to the appellant are reinstated.
When the husband failed to pay support arrears in accordance with an order of the Supreme Court, Nassau County, dated June 17, 1999, the wife served an income execution on him and his employer (see, CPLR 5241). The husband then brought this proceeding pursuant to CPLR 5241 to vacate the income execution based upon a "mistake of fact" (CPLR 5241[a][8]), claiming that he should be credited for paying the mortgage and carrying charges on the marital home during the pendente lite period in which the arrears accrued. The Supreme Court granted the petition and vacated the income execution. Additionally, the Supreme Court determined that no arrears were due to the wife, and, in effect, canceled arrears.
We agree with the wife's contention that the issue of the amount and propriety of the arrears allegedly owed by the husband is beyond the scope of this proceeding pursuant to CPLR 5241 to vacate an income execution (see, Matter of Caruso v. Huguenin, 217 A.D.2d 622; McGowan v. McGowan, 191 A.D.2d 618; Wikso v. Wikso, 164 A.D.2d 975). The husband failed to sustain his burden of presenting evidence of mistake of fact as defined by CPLR 5241(a)(8) (see, Matter of Stover v. Goegel, 213 A.D.2d 554; Cohn v. Cohn, 208 A.D.2d 885). Although in some cases, arrears may be offset by other pendente lite payments, such a determination must be made by a court, not by one of the parties. Furthermore, by summarily cancelling arrears which were determined by another Supreme Court Justice, the Supreme Court, in effect, improperly overruled a court of coordinate jurisdiction (see, People v. Evans, 94 N.Y.2d 499; Matter of Dondi v. Jones, 40 N.Y.2d 8).
We note that the wife consented to the vacatur of the income execution, apparently on the ground of improper service, and does not appeal from that portion of the court's order.