Burke v. Palermo

Appellate Division of the Supreme Court of New York

Burke v. Palermo

190 A.D.2d 1075, 593 N.Y.S.2d 1003, 1993 N.Y. App. Div. LEXIS 1320

Appellate Division of the Supreme Court of the State of New York·Decided February 5, 1993·Published·Cited by 4 cases

Opinion

— Order unanimously reversed on the law without costs and petition reinstated. Memorandum: Fam[1076]*1076ily Court erred by affirming the order of a Hearing Examiner that dismissed petitioner’s support petition with prejudice. Once petitioner stopped receiving public assistance, she was entitled to institute a support proceeding and to receive a de novo hearing on the amount of support to which she was entitled at that time (Family Ct Act § 571 [3] [b]). Petitioner should not have been relegated to bringing a petition to modify a prior support order obtained by the Department of Social Services, because petitioner was not a party to that action nor was she bound by the order issued therein (see, Matter of Cathleen P. v Gary P., 63 NY2d 805, 807; Matter of Commissioner of Social Servs. of City of N. Y. v Snell, 182 AD2d 474; Matter of Simone Q. v Wayne R., 135 AD2d 944; Matter of Commissioner of Social Servs. of City of N. Y. v Bailey, 79 AD2d 572). (Appeal from Order of Monroe County Family Court, Kohout, J. — Child Support.) Present — Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.

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— Order unanimously reversed on the law without costs and petition reinstated. Memorandum: Fam[1076]*1076ily Court erred by affirming the order of a Hearing Examiner that dismissed petitioner’s support petition with prejudice. Once petitioner stopped receiving public assistance, she was entitled to institute a support proceeding and to receive a de novo hearing on the amount of support to which she was entitled at that time (Family Ct Act § 571 [3] [b]). Petitioner should not have been relegated to bringing a petition to modify a prior support order obtained by the Department of Social Services, because petitioner was not a party to that action nor was she bound by the order issued therein (see, Matter of Cathleen P. v Gary P., 63 NY2d 805, 807; Matter of Commissioner of Social Servs. of City of N. Y. v Snell, 182 AD2d 474; Matter of Simone Q. v Wayne R., 135 AD2d 944; Matter of Commissioner of Social Servs. of City of N. Y. v Bailey, 79 AD2d 572). (Appeal from Order of Monroe County Family Court, Kohout, J. — Child Support.) Present — Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.

Burke v. Palermo, 190 A.D.2d 1075, 593 N.Y.S.2d 1003, 1993 N.Y. App. Div. LEXIS 1320 (N.Y. Ct. App. 1993).

Pincite

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Opinion

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