Opinion
2003-1507 Q C.
Decided January 27, 2005.
Appeal by plaintiff from a decision of the Civil Court, Queens County (A. Gazzara, J.), dated July 29, 2003, deemed (see CPLR 5520 [c]) an appeal from the judgment of the same court, entered November 13, 2003, following a nonjury trial, dismissing the complaint.
Judgment unanimously affirmed without costs.
PRESENT: January 27, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
In this action seeking repayment of child support amounts that defendant Long Island Railroad allegedly wrongfully garnished from plaintiff's wages, the findings of fact made by the court below rested in large part upon the court's evaluation of the credibility of the witnesses, and were made upon a fair interpretation of the evidence ( see Claridge Gardens v. Menotti, 160 AD2d 544). Plaintiff's pay had been garnished to the extent of $69.23 per week in child support payments, apparently pursuant to an out-of-state court order that was not introduced into evidence. The court was entitled to find, based on the parties' testimony, that plaintiff had agreed with the mother of his child to a voluntary increase to $100 per week. Without passing upon the propriety of defendant's procedures in this regard, which have apparently since been changed, we note that plaintiff admitted knowing of the increased deduction from his pay from its inception, and that he did not contest it over a three-year period. Given this inaction, it would be unreasonable and prejudicial under the circumstances to grant the relief plaintiff requests ( see Unger v. Unger, 145 Misc 2d 633, 636 [Sup Ct, Kings County 1989]).