Wikso v. Wikso

164 A.D.2d 975, 559 N.Y.S.2d 419, 1990 N.Y. App. Div. LEXIS 16831

Opinion

Order unanimously aifirmed with costs. Memorandum: In this proceeding pursuant to CPLR 5241 to correct or vacate an income execution for support enforcement on the ground of a mistake of fact, respondent contends that the amount of the arrears specified in the income execution is in error. He contends that he owes no money because the separation agreement which required him to pay maintenance was abrogated by the reconciliation of the parties. Respondent claims that the trial court erred when it summarily denied his application without a hearing.

Respondent’s claim is without merit. The Legislature did not intend that a mistake of fact include contentions involving legal questions (see, Mirabella v Mirabella, 131 Misc 2d 655). The issue of arrears is to be resolved on the basis of what the order of support directs and whether there has been compliance (see, Caldera v Caldera, 142 Misc 2d 434; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1990 Pocket Part, CPLR 5241, at 123). (Appeal from order of Supreme Court, Suffolk County, Leis, III, J.—maintenance and child support.) Present—Denman, J. P., Green, Pine, Balio and Lowery, JJ.