Opinion
09-6291.
Decided May 7, 2010.
Edward J. Carroll, Esq., Attorney For Plaintiff, Kingston, New York.
Law Offices of Mitchell H. Spinac, Attorneys For Defendant, Carol K. Morgan, Esq., of counsel, Kingston, New York.
In this proceeding, defendant moves for an order to dismiss the present proceeding. Plaintiff opposes the motion and cross moves for summary judgment. Defendant opposes plaintiff's cross-motion.
The parties were divorced in 1997 by an order of the Ulster County Supreme Court. Defendant subsequently moved to California, where he presently resides. Pursuant to the parties' judgment of divorce, defendant was obligated to pay certain sums for child support for the parties' three children. Defendant's payments of child support are made through the Ulster County Support Collection Unit and it is undisputed that over the years multiple contempt proceedings have been brought in California and on each occasion defendant has purged the contempt by making payments. Plaintiff has commenced the present proceeding seeking a judgment for the amount of arrears presently pending as of March 5, 2010, totaling $65,885.09.
Defendant now moves to dismiss, submitting an attorney affirmation which acknowledges that defendant does owe money to plaintiff. Defendant argues that a final judgment has already been entered against him and that the present action is barred by the doctrine of res judicata. Defendant also argues that this proceeding should be dismissed for failure to state a cause of action and as time barred because it seeks monies from 1997.
Plaintiff opposes defendant's motion, arguing that the attorney affirmation submitted is insufficient and that plaintiff has established prima facie entitlement to summary judgment as set forth in plaintiff's cross-motion.
Plaintiff cross moves for summary judgment pursuant to CPLR 3212. Plaintiff seeks judgment against defendant in the amount of $65,885.09, with interest, costs and disbursements. Plaintiff argues that the affirmative defenses set forth in defendant's answer, res judicata, failure to state a cause of action, and the statute of limitations, lack merit. Plaintiff attaches copies of the judgment of divorce establishing defendant's obligation for child support, along with the most recent Ulster County Family Court Order modifying child support, entered February 11, 2010. Plaintiff also provides a certified accounting of the Ulster County Child Support Collection Unit establishing the amount of arrears owed to plaintiff in the principal amount of $43,886.35, and with accrued interest in the total amount of $61,242.91. Plaintiff notes that defendant was also required to pay one half of unreimbursed medical and dental expenses for the parties children and plaintiff affirms that she has incurred unreimbursed dental and medical expenses totaling $9284.37, with defendant's portion totaling $4,642.18.
Regarding defendant's claim that the doctrine of res judicata applies, plaintiff notes that no monetary judgment has been entered in her favor although the child support collection unit is able to provide an accounting. Plaintiff also clarifies that prior contempt proceedings did not result in defendant paying any of the arrears sought to be reduced to a monetary judgment in the present proceeding. Plaintiff confirms that a final monetary judgment has never been entered in her favor to collect child support arrears. Plaintiff argues that the defense of res judicata is without merit under the circumstances and also that defendant's defense of failure to state a cause of action lacks any specific detail and must be stricken because it is conclusory. Plaintiff also notes that the statute of limitations does not preclude this action because it is an action to enforce child support arrears and the applicable statute of limitations is 20 years from the date of default. Plaintiff requests judgment against defendant in the total amount of $65,885.09.
Defendant opposes the motion, arguing that multiple issues remain to be resolved, including whether plaintiff's claims are barred by defendant's affirmative defenses of res judicata, statute limitations and failure to state a claim. Defendant also argues that plaintiff failed to prove her claim sufficiently on the present motion.
The Court notes that the plaintiff is permitted to bring the present proceeding to seek a judgment for child support arrears, contrary to defendant's arguments. The Court also notes that defendant does not contest the amounts owed, other than in conclusory form in opposition to plaintiff's summary judgment motion. The Court concurs with plaintiff that the affirmative defenses set forth in defendant's answer are properly stricken because plaintiff has established the absence of a prior proceeding resulting in a judgment for the child support arrears which are the subject of this proceeding. The Court finds that the present proceeding does state a cause of action and that it is not time-barred as argued by defendant. Based upon the foregoing, the Court finds that defendant's motion to dismiss must be denied.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact ( Andre v Pomeroy, 35 NY2d 361, 364). The focus should be on issue identification rather than issue determination ( Sternbach v Cornell University, 162 AD2d 922, 923 [3d Dept 1990]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; see also Ayotte v Gervasio, 81 NY2d 1062; Zuckerman v City of New York, 49 NY2d 557). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact ( see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding ( see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182; Boyce v Vazquez, 249 AD2d 724, 725 [3d Dept 1998]).
With regard to plaintiff's cross-motion for summary judgment, based upon the proof set forth on the motion as detailed above, the Court finds that plaintiff has set forth prima facie entitlement to judgment as a matter of law. The Court finds that defendant's opposition papers are insufficient to raise a triable issue of fact. Therefore plaintiff is entitled to summary judgment and entry of judgment in the principal amount $43,886.35 for child support, and in the principal amount of $4,642.18 for defendant's share of unreimbursed dental and medical expenses, with interest, motion costs of $100.00 and disbursements. Plaintiff may submit judgment accordingly.
Accordingly, it is
ORDERED, that defendant's motion to dismiss is denied; and it is further
ORDERED, that plaintiff's cross-motion for summary judgment is granted; and it is further
ORDERED, plaintiff may submit judgment as detailed herein.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.