Lusardi v. Giovinazzi

Appellate Division of the Supreme Court of New York

Lusardi v. Giovinazzi

81 A.D.3d 958, 917 N.Y.S.2d 889

Appellate Division of the Supreme Court of the State of New York·Decided February 22, 2011·Published·Cited by 8 cases

Opinion

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated March 2, 2010, which denied his objections to an order of the same court (Livrieri, S.M.) dated December 23, 2009, which, after a hearing, dismissed his petition for a downward modification of his child support obligation.

Ordered that the order dated March 2, 2010, is affirmed, without costs or disbursements.

The issues raised by the father on this appeal are not reviewable by this Court. The Family Court denied the father’s objections on the ground that he failed to file proof of service of a copy of the objections upon the mother. Family Court Act § 439 (e) provides, in pertinent part, that “[a] party filing objections shall serve a copy of such objections upon the opposing party,” and that “[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal.” By failing to file proof of service of a copy of his objections on the mother, the father failed to fulfill a condition precedent to filing timely written objections to the Support [959] Magistrate’s order. Consequently, he waived his right to appellate review of the merits of his objections (see Matter of Simpson v Gelin, 48 AD3d 693 [2008]; Matter of Chukwuogo v Chukwuogo, 46 AD3d 558 [2007]; Matter of Suffolk County Commr. of Social Servs. [Roman] v Carnegie, 12 AD3d 683 [2004]; Matter of Rinaldi v Rinaldi, 239 AD2d 506 [1997]). Angiolillo, J.P., Florio, Belen and Austin, JJ., concur.

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In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Hoffmann, J.), dated March 2, 2010, which denied his objections to an order of the same court (Livrieri, S.M.) dated December 23, 2009, which, after a hearing, dismissed his petition for a downward modification of his child support obligation.

Ordered that the order dated March 2, 2010, is affirmed, without costs or disbursements.

The issues raised by the father on this appeal are not reviewable by this Court. The Family Court denied the father’s objections on the ground that he failed to file proof of service of a copy of the objections upon the mother. Family Court Act § 439 (e) provides, in pertinent part, that “[a] party filing objections shall serve a copy of such objections upon the opposing party,” and that “[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal.” By failing to file proof of service of a copy of his objections on the mother, the father failed to fulfill a condition precedent to filing timely written objections to the Support [959] Magistrate’s order. Consequently, he waived his right to appellate review of the merits of his objections (see Matter of Simpson v Gelin, 48 AD3d 693 [2008]; Matter of Chukwuogo v Chukwuogo, 46 AD3d 558 [2007]; Matter of Suffolk County Commr. of Social Servs. [Roman] v Carnegie, 12 AD3d 683 [2004]; Matter of Rinaldi v Rinaldi, 239 AD2d 506 [1997]). Angiolillo, J.P., Florio, Belen and Austin, JJ., concur.

Lusardi v. Giovinazzi, 81 A.D.3d 958, 917 N.Y.S.2d 889 (N.Y. Ct. App. 2011).

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Opinion

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