Hamza v. Hamza

Appellate Division of the Supreme Court of New York

Hamza v. Hamza

268 A.D.2d 459, 701 N.Y.S.2d 919, 2000 N.Y. App. Div. LEXIS 551

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

DecidedJanuary 18, 2000

StatusPublished

Cited by3 cases

This text of 268 A.D.2d 459 (Hamza v. Hamza) 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

Hamza v. Hamza, 268 A.D.2d 459, 701 N.Y.S.2d 919, 2000 N.Y. App. Div. LEXIS 551 (N.Y. Ct. App. 2000).

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Opinion

—In a matrimonial action in which the parties were divorced by judgment dated November 18, 1996, the defendant former wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Rockland County (Miller, J.), dated December 23, 1998, as granted that branch of the motion of the plaintiff former husband which was to recoup overpayments in child support, and directed that she pay the plaintiff the sum of $4,748.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiff former husband which was to recoup overpayments in child support is denied.

While the recoupment of child support payments is, under certain circumstances, permissible (cf., Tuchrello v Tuchrello, 233 AD2d 917), we agree with the defendant’s contention that in the instant case the plaintiff is collaterally estopped from seeking recoupment. The record reveals that the plaintiff sought to recoup the overpayments in child support in a separate Family Court proceeding. By order dated August 7, 1998, the Family Court, Rockland County, terminated the plaintiff’s child support obligation effective November 17, 1997, but did not direct the defendant to repay any overpayments, and the plaintiff did not appeal from that order. Accordingly, he cannot seek to recover the overpayment in the Supreme Court (see, Honess 52 Corp. v Town of Fishkill, 266 AD2d 510). Bracken, J. P., Krausman, McGinity and Schmidt, JJ., concur.

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—In a matrimonial action in which the parties were divorced by judgment dated November 18, 1996, the defendant former wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Rockland County (Miller, J.), dated December 23, 1998, as granted that branch of the motion of the plaintiff former husband which was to recoup overpayments in child support, and directed that she pay the plaintiff the sum of $4,748.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiff former husband which was to recoup overpayments in child support is denied.

While the recoupment of child support payments is, under certain circumstances, permissible (cf., Tuchrello v Tuchrello, 233 AD2d 917), we agree with the defendant’s contention that in the instant case the plaintiff is collaterally estopped from seeking recoupment. The record reveals that the plaintiff sought to recoup the overpayments in child support in a separate Family Court proceeding. By order dated August 7, 1998, the Family Court, Rockland County, terminated the plaintiff’s child support obligation effective November 17, 1997, but did not direct the defendant to repay any overpayments, and the plaintiff did not appeal from that order. Accordingly, he cannot seek to recover the overpayment in the Supreme Court (see, Honess 52 Corp. v Town of Fishkill, 266 AD2d 510). Bracken, J. P., Krausman, McGinity and Schmidt, JJ., concur.

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Bluebook (online)

268 A.D.2d 459, 701 N.Y.S.2d 919, 2000 N.Y. App. Div. LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamza-v-hamza-nyappdiv-2000.

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