Falcon v. Accardi

• Decision Date: 28 May 1993
• Parties: Matter of Bonnie FALCON, Respondent, v. Stephen ACCARDI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 406

598 N.Y.S.2d 406

193 A.D.2d 1063

Matter of Bonnie FALCON, Respondent, v. Stephen ACCARDI, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

May 28, 1993.

Sharon Anscombe Osgood by Sharon Osgood, Buffalo, for appellant.

Karen Schimke, Richard A. Boccio, of counsel, Buffalo, for respondent.

Before CALLAHAN, J.P., and GREEN, LAWTON, DOERR and BOEHM, JJ.

MEMORANDUM:

Family Court properly directed respondent to pay the mother's expenses in connection with her confinement and recovery during the birth of the child (see, Family Ct.Act §§ 514, 545[1]. Because the mother received public assistance from the time the child was born until the time of the proceeding, imposing full costs of the mother's confinement upon respondent was within the court's sound discretion (see, Matter of Cortland County Dept. of Social Servs. [Lynn YY.] v. Thomas ZZ., 141 A.D.2d 119, 123, 534 N.Y.S.2d 720; Matter of Lisa M. UU. v. Mario D. VV., 78 A.D.2d 711, 432 N.Y.S.2d 411). Contrary to respondent's contention, his liability to pay the mother's confinement expenses does not depend upon his ability to pay at the time of the birth (see, Family Ct.Act §§ 514, 545[1]; Matter of Steuben County Dept. of Social Servs. v. Deats, 76 N.Y.2d 451, 560 N.Y.S.2d 404, 560 N.E.2d 760).

We reject respondent's contention that he was denied due process. The record establishes that the Hearing Examiner advised respondent of his right to counsel; however, respondent elected to proceed on his own (see, Family Ct.Act § 433; Linder v. Linder, 122 A.D.2d 27, 504 N.Y.S.2d 194; Matter of Dickstein v. Dickstein, 99 A.D.2d 929, 473 N.Y.S.2d 53). Respondent was not denied equal protection on the ground that Family Court Act § 514 imposes liability upon fathers but not mothers for confinement costs (see, Matter of Lisa M. UU. v. Mario D. VV., supra; see also, Family Ct.Act § 545[1].

Respondent's support obligation was properly set at 17% of his income, based upon his hourly wage of $8.75 (see, Family Ct.Act § 413[1][b][3][i].

The issue of respondent's liability for the mother's confinement costs was not previously litigated in the paternity proceeding. Therefore, the Department of Social Services is not barred by principles of res judicata from seeking reimbursement for those costs in the present proceeding (see generally, Matter of Hodes v. Axelrod, 70 N.Y.2d 364, 372-373, 520 N.Y.S.2d 933, 515 N.E.2d 612).

Order unanimously affirmed without costs.