Matter of Cordero v. Commissioner of Social Services, Support Collection Unit , 25 N.Y.S.3d 419 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 18, 2016 517529
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In the Matter of FRANCISCO
CORDERO,
Appellant,
v
MEMORANDUM AND ORDER
COMMISSIONER OF SOCIAL
SERVICES, SUPPORT
COLLECTION UNIT, on Behalf
of ELIZABETH SORIANO,
Respondent.
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Calendar Date: January 8, 2016
Before: Peters, P.J., Garry, Egan Jr., Devine and Clark, JJ.
__________
Francisco Cordero, Napanoch, appellant pro se.
Stephen M. Dorsey, County Attorney, Ballston Spa (Michael
J. Hartnett of counsel), for respondent.
__________
Clark, J.
Appeal from an order of the Family Court of Saratoga County
(Jensen, J.), entered August 8, 2013, which, in a proceeding
pursuant to Family Ct Act article 4, denied petitioner's
objections to the order of a Support Magistrate.
Petitioner, the father of a son (born in 1994), has been
incarcerated since 2009. Although a Warren County Support
Magistrate (Clark Jr., S.M.) suspended petitioner's child support
obligation upon consent in 2012, petitioner continued to owe
retroactive support to Saratoga County for the repayment of
public assistance funds received by the child. To recoup these
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funds, respondent issued an income execution order against
petitioner's inmate account, thereby garnishing his weekly
"program stipend" from the Department of Corrections and
Community Supervision. Petitioner commenced this proceeding in
Saratoga County seeking to, among other things, suspend the
income execution order until he has been released from prison and
has had an opportunity to obtain employment. The Support
Magistrate (Densmore, S.M.) dismissed petitioner's application
for want of jurisdiction, and Family Court denied petitioner's
written objections to the Support Magistrate's order. Petitioner
appeals, and we affirm.
Family Ct Act § 440 (1) (a) provides that, where a child
has received public assistance, the payment of retroactive child
support is to be enforced by the local support collection unit
"pursuant to an execution for support enforcement as provided for
in [CPLR 5241 (b)], or in such periodic payments as would have
been authorized had such an execution been issued. In such case,
[Family C]ourt shall not direct the schedule of repayment of
retroactive support." Inasmuch as it lacked the authority to
modify the repayment schedule set by respondent to recoup
retroactive support that petitioner owed to Saratoga County,
Family Court properly dismissed petitioner's application to
suspend the income execution order imposed against his inmate
account (see Family Ct Act § 440 [1] [a]; Matter of Tosques v
Ponyicky, 89 AD3d 1097, 1098 [2011]; Matter of Commissioner of
Social Servs. of City of N.Y. v Daryl S., 235 AD2d 126, 130-131,
133 [1997]; Matter of Stokley v Dorville, 177 Misc 2d 86, 89-92
[Fam Ct, Kings County 1998]). Petitioner's remaining
contentions, to the extent that they have not been addressed,
have been considered and found to be lacking in merit.
Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court