SUTKOWY (BJM) v. JB

CourtNew York Family Court
Citation196 Misc.2d 1005,763 N.Y.S.2d 920
Decision Date06 August 2003
PartiesIn the Matter of DAVID SUTKOWY, as Commissioner of Social Services, on Behalf of B.J.M., Petitioner,<BR>v.<BR>J.B., Respondent.

196 Misc.2d 1005
763 N.Y.S.2d 920

In the Matter of DAVID SUTKOWY, as Commissioner of Social Services, on Behalf of B.J.M., Petitioner,
v.
J.B., Respondent.

August 6, 2003.


Joseph M. Kelly & Associates (Sujata Lal of counsel), for petitioner.

Fortuna S. Habib for respondent.

OPINION OF THE COURT

MICHAEL L. HANUSZCZAK, J.

The petitioner, the Commissioner of Social Services, objects to the fact-finding and order of disposition of the support magistrate (formerly known as the hearing examiner), filed and entered on February 18, 2003. An affidavit of service has been filed with the court, indicating proper service of the objection on the respondent's attorney on March 25, 2003. A rebuttal to

[196 Misc.2d 1006]

the objection to the order of the hearing examiner was received on April 7, 2003 from the respondent's attorney. No affidavit of service has been filed with the court indicating service of the rebuttal on the petitioner's attorney in contravention of the Uniform Rules for the New York State Trial Courts (22 NYCRR) § 205.37 (d). A transcript of the proceedings was received on July 10, 2003. The court notes that the matter was heard along with three other enforcement petitions against the respondent on the day of the hearing, and the parties stipulated that the respondent's prior testimony in the other enforcement actions could be considered by the court.

Petitioner filed a petition on August 21, 2002 for enforcement of the order of support, which was dated May 11, 1987 and which directed the respondent to pay support in the amount of $20 per week, seeking a money judgment for arrears due the Onondaga County Department of Social Services. Petitioner alleged the respondent had not paid child support since 1996 and that, as of July 24, 2002, the respondent owed $9,558.92 to the Onondaga County Department of Social Services and $4,920 to assignor B.J.M.

The initial appearance on the petition was held on November 4, 2002, petitioner having appeared and respondent having appeared via the telephone. The petitioner stated that the commissioner was not seeking a determination of wilful violation of the order of support. The respondent entered a denial and was assigned counsel, and the matter was scheduled for a hearing.

On January 9, 2003, the petitioner personally appeared, the respondent's attorney Fortuna S. Habib, Esq., appeared, and the respondent testified telephonically. A certified copy of a document package containing the account statement, payment history, and disbursement history was received into evidence on behalf of the petitioner, and the record was held open pending the submission by the respondent of a certified copy of the respondent's Social Security wages.

The support magistrate made the following findings: (1) the respondent violated the order of support in that no payments were made since 1996; (2) the respondent earned between $14,000 and $16,200 from 1984 through 1986 and had income below the poverty level established by federal guidelines for every year since 1988; (3) the respondent offered no credible explanation for a change in his ability to earn or his lack of work; (4) the respondent has not undertaken a serious job search in recent years; (5) there is no proof that respondent

[196 Misc.2d 1007]

had any property or income during the subject period or that the respondent voluntarily terminated his employment; and (6) insufficient evidence was presented to determine the arrears owed to the Department of Social Services. The support magistrate noted that the petitioner had failed to show that the respondent could have obtained employment at or above the poverty level. Based on these findings, the support magistrate adjudged that the respondent failed to obey the support order, ordered the support arrears capped at $500, and entered judgment for the Onondaga County Department of Social Services in the...

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6 practice notes
  • Roshia v. Thiel
    • United States
    • New York Supreme Court Appellate Division
    • October 4, 2013
    ...Matter of Onondaga County Dept. of Social Servs. v. Timothy S., 294 A.D.2d 27, 29–30, 741 N.Y.S.2d 622;Matter of Sutkowy v. J.B., 196 Misc.2d 1005, 1008–1009, 763 N.Y.S.2d 920;cf. Matter of Commissioner of Social Servs. v. Campos, 291 A.D.2d 203, 205, 737 N.Y.S.2d 341;Matter of Blake v. Syc......
  • Wayne Cnty. Dep't of Soc. Servs. ex rel. Jackson v. Loren, 1548
    • United States
    • New York Supreme Court Appellate Division
    • March 16, 2018
    ...arrears at $500 pursuant to Family Court Act § 413(1)(g) (see Roshia, 110 A.D.3d at 1492, 972 N.Y.S.2d 804 ; Matter of Sutkowy v. J.B., 196 Misc.2d 1005, 1008–1009, 763 N.Y.S.2d 920 [Fam. Ct., Onondaga County 2003] ).It is hereby ORDERED that the order so appealed from is unanimously affirm......
  • In the Matter of Janet E. v. Antonio B., 2005 NY Slip Op 25434 (NY 10/18/2005), U-03831-04.
    • United States
    • New York Court of Appeals
    • October 18, 2005
    ...fairness and is contrary to the overall intent of the statute and legislative intent . . . . Sutkowy v. Comm. of Soc. Servs., 196 Misc2d 1005, 1008, 763 NYS2d 920, 922 (Fam. Ct. Onondage Cnty 2003). After holding that "the support arrears cap provision must be applied with regard to the fac......
  • Matter of J.A.E. v. A.B., U-03831-04
    • United States
    • New York Family Court
    • October 18, 2005
    ...a sense of fundamental fairness and is contrary to the overall intent of the statute and legislative intent" (Matter of Sutkowy v J.B., 196 Misc 2d 1005, 1008 [Fam Ct, Onondaga County After holding that "the support arrears cap provision must be applied with regard to the facts and circumst......
  • Request a trial to view additional results
6 cases
  • Roshia v. Thiel
    • United States
    • New York Supreme Court Appellate Division
    • October 4, 2013
    ...Matter of Onondaga County Dept. of Social Servs. v. Timothy S., 294 A.D.2d 27, 29–30, 741 N.Y.S.2d 622;Matter of Sutkowy v. J.B., 196 Misc.2d 1005, 1008–1009, 763 N.Y.S.2d 920;cf. Matter of Commissioner of Social Servs. v. Campos, 291 A.D.2d 203, 205, 737 N.Y.S.2d 341;Matter of Blake v. Syc......
  • Wayne Cnty. Dep't of Soc. Servs. ex rel. Jackson v. Loren, 1548
    • United States
    • New York Supreme Court Appellate Division
    • March 16, 2018
    ...arrears at $500 pursuant to Family Court Act § 413(1)(g) (see Roshia, 110 A.D.3d at 1492, 972 N.Y.S.2d 804 ; Matter of Sutkowy v. J.B., 196 Misc.2d 1005, 1008–1009, 763 N.Y.S.2d 920 [Fam. Ct., Onondaga County 2003] ).It is hereby ORDERED that the order so appealed from is unanimously affirm......
  • In the Matter of Janet E. v. Antonio B., 2005 NY Slip Op 25434 (NY 10/18/2005), U-03831-04.
    • United States
    • New York Court of Appeals
    • October 18, 2005
    ...fairness and is contrary to the overall intent of the statute and legislative intent . . . . Sutkowy v. Comm. of Soc. Servs., 196 Misc2d 1005, 1008, 763 NYS2d 920, 922 (Fam. Ct. Onondage Cnty 2003). After holding that "the support arrears cap provision must be applied with regard to the fac......
  • Matter of J.A.E. v. A.B., U-03831-04
    • United States
    • New York Family Court
    • October 18, 2005
    ...a sense of fundamental fairness and is contrary to the overall intent of the statute and legislative intent" (Matter of Sutkowy v J.B., 196 Misc 2d 1005, 1008 [Fam Ct, Onondaga County After holding that "the support arrears cap provision must be applied with regard to the facts and circumst......
  • Request a trial to view additional results

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