Dubin v. Drescher

Appellate Division of the Supreme Court of New York

Dubin v. Drescher

92 A.D.3d 558, 938 N.Y.2d 547

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 21, 2012

StatusPublished

This text of 92 A.D.3d 558 (Dubin v. Drescher) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dubin v. Drescher, 92 A.D.3d 558, 938 N.Y.2d 547 (N.Y. Ct. App. 2012).

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Opinion

Plaintiff failed to establish his inability to pay the basic child support he owes (see Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]). He did not show that he has suffered a diminution in his lifestyle {see id.). He did not show that he has made reasonable efforts to obtain gainful employment (see Matter of Maria T. v Kwame A., 35 AD3d 239 [2006]).

However, calculating plaintiffs support obligations based on his actual income, pursuant to the settlement agreement, we find that the amount due to defendant, including certain reimbursed expenses, is $99,955. The contract does not provide that plaintiff s support obligations will not be readjusted if he fails to provide defendant with the documentation necessary to determine his income, and we may not rewrite the contract so to provide (see Fiore v Fiore, 46 NY2d 971 [1979]). Moreover, our construction is consistent with the parties’ conduct (see Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 47 [1956]).

As the record demonstrates that defendant has been prejudiced by plaintiffs failure to pay his support obligations for approximately three years and that she is otherwise without recourse to collect the amount owed, we find that the pay-off schedule directed by the court was reasonable.

[559]*559We have considered plaintiffs remaining arguments and find them unavailing. Concur — Andrias, J.E, Saxe, Acosta, Freedman and Richter, JJ.

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Plaintiff failed to establish his inability to pay the basic child support he owes (see Matter of Powers v Powers, 86 NY2d 63, 69-70 [1995]). He did not show that he has suffered a diminution in his lifestyle {see id.). He did not show that he has made reasonable efforts to obtain gainful employment (see Matter of Maria T. v Kwame A., 35 AD3d 239 [2006]).

However, calculating plaintiffs support obligations based on his actual income, pursuant to the settlement agreement, we find that the amount due to defendant, including certain reimbursed expenses, is $99,955. The contract does not provide that plaintiff s support obligations will not be readjusted if he fails to provide defendant with the documentation necessary to determine his income, and we may not rewrite the contract so to provide (see Fiore v Fiore, 46 NY2d 971 [1979]). Moreover, our construction is consistent with the parties’ conduct (see Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 47 [1956]).

As the record demonstrates that defendant has been prejudiced by plaintiffs failure to pay his support obligations for approximately three years and that she is otherwise without recourse to collect the amount owed, we find that the pay-off schedule directed by the court was reasonable.

[559]*559We have considered plaintiffs remaining arguments and find them unavailing. Concur — Andrias, J.E, Saxe, Acosta, Freedman and Richter, JJ.

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Bluebook (online)

92 A.D.3d 558, 938 N.Y.2d 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dubin-v-drescher-nyappdiv-2012.

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