A New York Family Lawyer said that, in a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Nassau County, dated March 30, 2009, which denied his objections to so much of an order of the same court, dated October 14, 2008, as granted that branch of the mother’s motion which was to preclude evidence of the father’s finances and, in effect, granted the mother’s petition to enforce the provisions of a judgment of divorce dated July 9, 1996, and the parties’ separation agreement which was incorporated but not merged into the judgment of divorce, obligating the father to pay the college expenses of the parties’ child.
A New York Custody Lawyer said the issue in this case is whether the court erred in granting to enforce the provisions of a judgment of divorce dated July 9, 1996.
A New York City Family Lawyer said the court in deciding the case said that, contrary to the father’s contention, there is no requirement that a movant identify a specific statute or rule in the notice of motion, only that the notice “specify the relief demanded and the grounds therefor” (CPLR 2214 [a]). Even though the mother’s notice of motion and supporting affirmation did not formally and specifically request relief pursuant to CPLR 3126, where, as here, there is no misunderstanding or prejudice, “a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides”. Here, the mother’s notice of motion clearly seeks the relief of preclusion based upon the father’s alleged willful failure to respond to her discovery demands. Accordingly, because the father was adequately apprised of the relief sought and the grounds therefor, there was no prejudice, and the Child Support Magistrate did not err in treating the motion as one made pursuant to CPLR 3126.
The standards for summary judgment are well settled. A Court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is; therefore, entitled to summary judgment as a matter of law. Thus, when faced with a summary judgment motion, a court’s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial.
Nevertheless, the Child Support Magistrate improvidently exercised her discretion in granting that branch of the mother’s motion which was to preclude evidence of the father’s finances. While the nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court, in order “to invoke the drastic remedy” of preclusion for failure to disclose pursuant to CPLR 3126 (2), the court “must determine that the offending party’s lack of cooperation with disclosure was willful, deliberate, and contumacious”. In this case, the father served responses and objections to the mother’s discovery demands. While the mother was clearly dissatisfied with the objections and responses to her demands, there was no showing of a pattern of willful failure to respond to discovery demands or comply with disclosure orders, so as to justify an order of preclusion.
A New York City Custody Lawyer said that moreover, the court notes that the mother’s motion was unsupported by an affirmation of a good faith effort to resolve the purported discovery dispute as required by 22 NYCRR 202.7.
Accordingly, the Support Magistrate improvidently exercised her discretion in granting that branch of the mother’s motion which was to preclude evidence of the father’s finances. We therefore remit the matter to the Family Court, Nassau County for a new determination of the petition.
Accordingly, the court held that order dated March 30, 2009 is reversed, on the facts and in the exercise of discretion, the objections are granted, so much of the order dated October 14, 2008 as granted that branch of the mother’s motion which was to preclude evidence of the father’s finances and, in effect, granted the mother’s petition are vacated, that branch of the mother’s motion which was to preclude evidence of the father’s finances is denied, and the matter is remitted to the Family Court, Nassau County, for a new determination of the petition.
If you have a claim for child support, seek the assistance of a Nassau Child support Attorney and Nassau Family Attorney at Stephen Bilkis and Associates. Call us.