Gottlieb v. City of N.Y.

• Decision Date: 03 June 2015
• Docket Number: 2014-01086
• Citation: 2015 N.Y. Slip Op. 04645,129 A.D.3d 724,10 N.Y.S.3d 542
• Parties: In the Matter of Craig GOTTLIEB, appellant, v. CITY OF NEW YORK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 724

10 N.Y.S.3d 542

2015 N.Y. Slip Op. 04645

In the Matter of Craig GOTTLIEB, appellant

v.CITY OF NEW YORK, et al., respondents.

2014-01086

Supreme Court, Appellate Division, Second Department, New York.

June 3, 2015.

Craig Gottlieb, Flushing, N.Y., appellant pro se.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Elizabeth S. Natrella of counsel), for respondents.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.

Opinion

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the New York City Office of Child Support Enforcement dated November 14, 2012, denying, in effect, the petitioner's request for a recalculation of the amount of child support debt owed by him, and action to recover damages for violation of the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq. ), intentional infliction of emotional distress, and gross negligence, and for an injunction, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (McDonald, J.), dated October 1, 2013, which denied the petition and dismissed the proceeding, and granted the respondents' motion, inter alia, pursuant to CPLR 3211(a) to dismiss the causes of action alleging a violation of the Fair Credit Reporting Act, intentional infliction of emotional distress, gross negligence, and for an injunction.

ORDERED that the order and judgment is affirmed, with costs.

On January 23, 2009, the wife of the petitioner/plaintiff (hereinafter the petitioner) filed a petition seeking, inter alia, child support from him. On February 24, 2009, a Support Magistrate entered a temporary order of support directing the petitioner to pay child support in the sum of $100 per week to his wife through the New York State Support Collection Unit (hereinafter the SCU), commencing on February 27, 2009. In an order dated July 7, 2009 (hereinafter the July 2009 order), entered upon consent, the petitioner was directed to pay the sum of $1,215 per month in combined child and spousal support, payable through the SCU, commencing on July 30, 2009. The July 2009 order further provided that the petitioner was “additionally responsible for the support so ordered from January 23, 2009 to July 30, 2009,” and directed the petitioner to pay the sum of $8,440. The SCU was directed to “[c]redit all payments made [by the petitioner] since 1/23/2009 to reduce the retro amount.”

In March 2012, the petitioner admittedly withheld payment and, in April 2012, only remitted the sum of $50.79, based on his contention that he was owed a credit by the SCU for payments made by him between February 28, 2009, and July 30, 2009. Enforcement measures were taken by the New York City Human Resources Administration Office of Child Support Enforcement (hereinafter OCSE), including the issuance of restraining notices to two different financial institutions holding the petitioner's bank accounts. On October 9, 2012, the petitioner submitted a “Mistake of Fact” form to the SCU, claiming that his account was not in arrears and, instead, that he was “due a credit of $18.08.” On November 14, 2012, the OCSE denied the petitioner's claim that the SCU “has made an error in the amount of child support debt that is owed,” and determined that “there is an amount past-due and owing.”

The petitioner commenced this hybrid proceeding pursuant to CPLR article 78 to review the determination dated November 14, 2012, and action to recover damages for a violation of the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq. ), intentional infliction of emotional distress, and gross negligence, and to permanently enjoin the respondents/defendants (hereinafter the respondents) from reporting any derogatory information related to his support collection account to credit reporting agencies, and directing the respondents to take steps necessary to remove any derogatory information from his credit file at the credit reporting agencies. The respondents moved, inter alia, pursuant to CPLR 3211(a) to dismiss the petition/action.

A special proceeding under CPLR article 78 is available to challenge the actions or inaction of agencies and officers of state and local government (see Matter of Luczaj v. Bortnik, 91 A.D.3d 872, 873, 937 N.Y.S.2d 277 ). The standard of judicial review in the instant matter is whether the administrative determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see CPLR 7803[3] ; Matter of JP & Assoc. Corp. v. New York State Div. of Hous. & Community Renewal, 122 A.D.3d 739, 739, 996 N.Y.S.2d 633 ). An arbitrary determination is one that is without a sound basis in reason, and is made without regard to the facts (see Matter of Wooley v. New York State Dept. of Correctional Servs., 15 N.Y.3d 275, 280, 907 N.Y.S.2d 741, 934 N.E.2d 310 ; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 ).

Here, the determination of the OCSE to deny the petitioner's claim that the SCU erred in calculating the amount of past-due support owed by him has a rational basis in the record, and was, thus, not arbitrary and capricious. The payment history for the petitioner's support collection account established that, at the time the petitioner submitted the “Mistake of Fact” form, his account was in arrears. Moreover, the payment history flatly contradicted the petitioner's claim that the payments made by him from February 2009 until July 2009 were not credited to his account (see Matter of Kirkpatrick v. Wambua, 117 A.D.3d 739, 740, 985 N.Y.S.2d 151 ; Ford v. Department of Social Servs., 41 Misc.3d 1237[A], 2013 N.Y. Slip Op. 52045[U], *7–8, 2013 WL 6421723 [Sup.Ct., N.Y. County] ; Ward v. NYC Human Resources Admin., 2011 N.Y. Slip Op. 33162[U], 2011 WL 6297967 [Sup.Ct., N.Y. County 2011] ; Matter of Ovalles v. New York City Human Resources Admin., 2008 N.Y. Slip O.p 33635[U], *2–4, 2008 WL 8738220 [Sup.Ct., N.Y. County 2008] ). Further, contrary to the petitioner's contention, the OCSE was authorized, upon determining that his account was in arrears, to attach and seize his assets for the purpose of collecting the overdue support obligation (see Social Services Law § 111–t ; 18 NYCRR 346.11 ), and offset any refund of income tax by the amount of...