Weiss v. Weiss

173 A.D.2d 698

Opinion

In a matrimonial action in which the parties were divorced by judgment entered October 11, 1988, the plaintiff former husband appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated October 25, 1989, which denied his motion to set aside the defendant former wife’s income execution pursuant to CPLR 5241.

Ordered that the order is affirmed, with costs.

The documentary proof before the Supreme Court established that, when the defendant served the income execution pursuant to CPLR 5241 on the plaintiff’s employer on August 18, 1989, the plaintiff was more than three payments in arrears. Since the husband failed to proffer any evidence of mistake of fact as defined in CPLR 5241 (a) (8), the Supreme Court properly denied his motion to vacate the income execution (see, Blackman v Blackman, 131 AD2d 801, 805).

We have examined the plaintiff’s remaining contentions and find them to be without merit. Mangano, P. J., Bracken, Brown and Balletta, JJ., concur.