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New York County Family Court


2011 NY Slip Op 52244
Leslie G., Petitioner,
Simon B., Respondent.
Family Court, Kings County
Dated: December 5, 2011
Patricia Martin-Gibbons, Esq., for the Petitioner
Brian J. Zimmerman, Esq., for the Respondent
Martha Pollack, Esq., for the Child The Children’s Law Center
Paula J. Hepner, J.

Before the Court is a motion made in limine for a ruling on the admissibility of testimony regarding prior incidents that occurred on April 3, 2006 and March 28, 2007. Petitioner is before the Court on her third family offense proceeding which she filed against the Respondent on January 14, 2009. This petition described “the most recent incident” as occurring on December 28, 2008 and “the most serious incident” as occurring on April 3, 2006.1 Two prior family
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offense petitions had been filed in New York County Family Court, one on April 24, 2006,2 and one on February 14, 2008.3 Trial began on February 28, 2011 with the Petitioner’ testimony. During direct examination, counsel elicited testimony from the Petitioner regarding incidents occurring from December 18, 1996 to February 3, 2010, and the three specific incidents in her petition: April 3, 2006, November 18, 2008 and December 28, 2008. Counsel for the Respondent objected to questions about the April 3, 2006 incident on the grounds that it was settled in Manhattan Family Court on a prior filing under Docket # O-2278/08. Criminal Counsel was directed to requisition the files from New York County to determine what the allegations were and how they were settled.

This issue arose again on June 16, 2011 when Petitioner’s counsel attempted to return her client’s attention to the events of April 3, 2006. Because Respondent’s counsel had not obtained any certified records from New York County and had not filed a Bill of Particulars to clarify what other criminal incidents were being claimed in the interval between “the most serious incident” and the “most recent incident.” Although the Petitioner conceded that the issues were resolved in the prior case, her attorney argued these events were admissible in this matter “to show that it causes possibly my client to experience certain emotions,” and the objection was overruled on this basis.
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As the direct of the Petitioner proceeded, her attorney inquired about other prior incidents and, in the absence of a Bill of Particulars to narrow the testimony, the Petitioner was permitted to testify about a prior incident in March 2007. Respondent’s counsel again objected on the same grounds, that it was an allegation in a prior petition in Manhattan that was resolved. Still without any documentation to support the basis for the Respondent’s objection, and Petitioner’s counsel continued to argue that the testimony was admissible to explain “any fear or upset that she may experience as a result of [the Respondent’s] actions,” the objection was again overruled. Respondent’s counsel continued to object to any questions pertaining to the incident of March 2007 on the grounds that the matter was settled in the prior Manhattan case and the Court again advised counsel to secure the transcript.

When the case continued on June 30, 2011, Respondent’s counsel had not requisitioned the files from Manhattan. On cross-examination and without objection, he showed the Petitioner a copy of a “certificate of record” for the 2008 family offense petition and inquired if the matter was settled. The Petitioner refuted that assertion saying that the matter was not settled, that she had an order of protection, but agreed there was no trial.

Although the trial could not continue on the next adjourned date of July 5, 2011, counsel gave oral arguments about the legal issues pertaining to the prior family offense petitions filed in New York County, specifically Respondent’s contention that testimony about them is precluded by the doctrine of res judicata and Petitioner’s contention that the testimony is admissible as “prior bad acts” and establishes a course of conduct by the Respondent which explains Petitioner’s state of mind in later incidents. At the conclusion of the oral argument, copies of the Manhattan files were requisitioned by the Court in order to determine how to rule on Respondent’s objections to the admissibility of testimony concerning the incidents of March 2007 and April 2006 and to determine what latitude to give Respondent’s counsel in framing questions about the disposition of the prior cases.

The two prior petitions filed in Manhattan Family And Criminal Court contained allegations regarding an incident on April 3, 2006. The second petition also contained an allegation about March 22, 2007. The first petition under Docket #O-5234/06 was settled on June 26, 2007 with the Respondent consenting to an order of protection without admission of wrongdoing and a suspended judgment for a period of six months. The second petition under Docket #O-02278/08 was withdrawn on March 27, 2008 evidently without prejudice as the endorsement does not reflect otherwise and no order was in the file. No motion was made to dismiss the April 3, 2006 allegation when the second petition was filed.

At the time this proceeding was filed in 2009, Article VIII of the Family Court Act did not contain a time period within which a proceeding for an order of protection must be instituted. In accordance with Section 165 of the Family Court Act, trial courts turned to CPLR 213(1) that allows an action “for which there is no limitation specifically prescribed by law” to be commenced within six years. This time frame was shortened by the appellate courts that addressed the question of how old allegations in a family offense petition may be and survive dismissal. The standard established in the First and Second Departments required the events to be “relatively contemporaneous” if they are to support the finding of a family offense and the need for an immediate order of protection (Matter of Ashley P., 31 AD3d 767, 769 [2d Dept 2006]; Swersky v Swersky, 299 AD2d 540 [2d Dept 2002]; Yoba v Yoba, 183 AD2d 418 [1st Dept.
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1992]). This line of cases was overruled in August 2010 when the New York Legislature amended Family Court Act §812 to direct that “[i]n any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the criminal petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing.”4 The issue now “in family offense matters is not the age of the threat but the imminence of the danger” (Opray v Fitzharris, 84 AD3d 1092 [2d Dept 2011]). In passing this bill, one trial judge wrote, “the introducer’s memorandum in support noted that domestic violence must be viewed as a video as opposed to a snapshot.’ “Because family offenses have no specified statute of limitations, courts have had to evaluate each case individually to determine if a delay in filing would prevent the purposes of the act from being carried out” (Jose M. v Tatianna T., 30 Misc 3d 948 [FamCt Albany County 2011]; see also Elkins, Fosbinder & Breger, NYLDOMVIOL § 2:19 [2011]).

This amendment was not introduced with a sponsor’s bill or any reports specifying when the amendment was to be effective, however the larger bill notes that the “act shall take effect immediately and shall apply to all orders of protection pending or entered on or after such effective date” (L. 2010, c. 341, § 9). Inasmuch as this petition for an order of protection was pending when this law was enacted, the unspecified allegations from December 18, 1996 to February 3, 2010, as well as the specific allegations from April 3, 2006, March 22, 2007, January 9, 2008, November 18, 2008 and December 28, 2008 can no longer be dismissed as time-barred.
The traditional litigation vehicles for claim preclusion, the doctrine of res judicata, and issue preclusion, the doctrine of collateral estoppel, are not an available defense in this case. Rule 3211(a)(5) of the New York Civil Practice Law & Rules provides that a party may move to dismiss a cause of action on the ground of collateral estoppel or res judicata. Pursuant to subdivision (e) of the Rule, any objection or defense based on either of these grounds is waived unless raised by motion or in a responsive pleading. This is because each of these doctrines is dependent upon the existence of certain circumstances and the party asserting the defense as well as the party opposing the defense have to meet differing burdens of proof in order to prevail. For these reasons CPLR 3211(e) requires that the defense be raised and decided pretrial rather than reserved until the trial and put forward in the form of an objection to the admissibility of evidence. Since the Respondent neither filed an answer to the petition nor made a pretrial motion, the defense is waived and his application to preclude testimony about the April 3, 2006 and the March 22, 2007 incidents is denied on procedural grounds.

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The only express exception this Criminal Court has found is in NY Soc. Serv Law §111-s, which allows for access to information contained in government and private records by the department, or a social services district and similar child support enforcement agencies for the purpose of establishing paternity, or establishing, modifying or enforcing an order of support. No exception exists for the recoupment or restoration of overpayments.

Having examined the applicable statutory scheme, the Court concludes that no exception or exemption from disclosure was intended to provide disclosure in connection with a lawsuit seeking recoupment of an overpayment. Had that been the case, the New York State and United States legislatures would have added language providing for such exceptions. The Court construes their silence as an indication that they did not intend to do so, and declines to legislate judicially.

In addition to the confidentiality of the information sought, a subpoena duces tecum may not be used for purposes of procuring discovery, or to ascertain the existence of evidence (see Matter of Amex v Vinci, 63 AD3d 1055 [2d Dept. 2009]; Matter of Terry D., 81 NY2d 1042, 1044 [1993], citing People v Gissendanner, 48 NY2d 543, 551 [1979]). In such instances, a motion to quash is the appropriate remedy (see Terry D., supra). The plaintiff in the instant case is seeking to subpoena information that he may be able to use as evidence in support of his claim against the defendant, in other words, for discovery purposes. As such, this is an impermissible use of the subpoena process.

Moreover, the information sought to be compelled may be obtained through alternative sources available to the plaintiff, i.e., payroll records, bank records.

As to the necessity of such information, this Court finds that it has not been established for several reasons. The necessity of this information is obviated if plaintiff does not have a cause of action against the defendant. Plaintiff has not demonstrated that public policy permits him a claim against the defendant for restitution. Indeed, the case law suggests otherwise (see, infra). In addition, plaintiff may have waived his right to seek recovery by not acting promptly and efficaciously in Family Court. Finally, proper venue for the instant claim may be Family Court, rather than the Civil Court of the City of New York, County of Queens.

As to the first above-referenced issue, the cases dealing with the issue of recoupment of child support overpayments emphasize the strong public policy against restitution or recoupment of said overpayments (see e.g. Matter of Fitzgerald, 86 AD3d 611 [2d Dept. 2011]; Matter of Taddonio, 51 AD3d 935 [2d Dept. 2008] and cases cited therein; Crosswell v Crosswell, 2008 NY Slip Op 52051U; 21 Misc 3d 131A; 873 N.Y.S.2d 510; 2008 NY Misc. LEXIS 5971 [Sup. Ct. App. Term 2008]). Plaintiff is seeking recoupment of support overpayments made while plaintiff was the custodial parent prior to the issuance by the Family Court of an Order Terminating an Order of Support on May 15, 2009. The above case law has limited the scope of relief to a credit against arrears (Fitzgerald et al, supra), or a determination by the Family Court of the amount of a credit for overpayments made directly to the custodial parent and also collected simultaneously by the Support collections Unit (Taddonio et al, supra at 936). In Taddonio, the appellate court remitted the matter back to Family Court for determination of said credit. The cases have, absent extraordinary circumstances, almost uniformly refused to direct restitution. There are exceptions to this rule, but those exceptions are limited to situations, for example, where there is a computational error by the Court, (see People ex rel. Breitstein, v

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Aaronson, 3 AD3d 588 [2d Dept. 2004]; Colicci v Ruhm, 20 AD3d 891 [4th Dept. 2005]), where there is conclusive evidence that the petitioner is not the biological father (Matter of Thomas, 287 AD2d 642 [2d Dept. 2001]), or where the father was temporarily compelled to pay excess support solely due to the court’s improper application of the child support statute (People ex rel. Breitstein v Aaronson, 3 AD3d 588 [2d Dept. 2004]). None of these exceptional circumstances are present here. Therefore, the threshold question is one of whether public policy even permits a recovery of criminal overpayments to the plaintiff.

Next, the record of the proceeding before the Support Magistrate on May 15, 2009 indicates no request by petitioner’s counsel on his behalf for a finding of a credit due to the petitioner for overpayments made from December 15, 2008 until May 15, 2009. While counsel “reserved his right” to seek restitution on behalf of his client for any overpayments, (see Hearing transcript at p. 4, lines 1-5), he never requested that amount to be fixed by the support magistrate. In addition, counsel never questioned the support magistrate’s statement that “it was beyond the authority of the Court” (Hearing transcript at p. 4, lines 6-9). Moreover, the Order Terminating an Order of Support did not contain a finding of any credit due to the plaintiff. The Order fixed arrears at $0 and directed OCSE to refund all monies on hand and those collected after May 15, 2009 to the plaintiff. The Court presumes that Order was neither reargued nor appealed. A finding of a credit due by the support magistrate would have facilitated or even obviated the instant action. In Hamza v Hamza, (268 AD2d 459 [2d Dept. 2000]), the court ruled::

While the recoupment of child support payments is, under certain circumstances, permissible (cf., Tuchrello v Tuchrello, 233 AD2d 917), we agree with the defendant’s contention that in the instant case the plaintiff is collaterally estopped from seeking recoupment. The record reveals that the plaintiff sought to recoup the overpayments in child support in a separate Family Court proceeding. By order dated August 7, 1998, the Family Court, Rockland County, terminated the plaintiff’s child support obligation effective November 17, 1997, but did not direct the defendant to repay any overpayments, and the plaintiff did not appeal from that order. Accordingly, he cannot seek to recover the overpayment in the Supreme Court (see, Honess 52 Corp. v Town of Fishkill, 266 AD2d 510).

(See also Matter of Benjamin Thomas v Comm. Soc. Serv., 287 AD2d 642 [2d Dept. 2001]). In Lashley v Jones, (2009 NY Slip Op 29329; 25 Misc 3d 72; 890 N.Y.S.2d 245; 2009 NY Misc. LEXIS 2074 [Sup. Ct. App. Term 2d Dept 2009]), the Court held:

Family Court Act § 439 (e) provides an expedited process whereby a party objecting to a Support Magistrate’s order may submit written objections to such order to a Family Court judge, who will then either remand factual issues to the Support Magistrate, make his or her own factual findings and issue a new order, or deny the objections. In the instant case, in the absence of any overpayment provision in the Support Magistrate’s order which terminated child support, plaintiff’s remedy was, pursuant to Family Court Act § 439 (e), to object to said order in the Family Court and to ask that court to set the amount of overpayment, and not to commence an independent action in the Civil Court, which was not in a

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position to make its own calculation of the amount of any alleged overpayment.

The plaintiff has not demonstrated that his damages were not caused by his counsel’s inaction. Counsel failed to request a credit from the support magistrate. He then failed to file written objections to the support magistrate’s order. Finally, it appears counsel never reargued or appealed the order that failed to provide for said credit. Based upon the court’s holding in Lashley, supra, it is questionable whether this action may be maintained in this court, thereby obviating the need for the subpoenaed records.

Finally, the court wishes to acknowledge that there is appellate term case law holding that the instant proceeding is of a type that ought to be brought, if at all, in Family Court due to the exclusive purview of that court in handling child-support matters. In Ramos v Chacon, (2011 NY Slip Op 50433U, 30 Misc 3d 145A; 926 N.Y.S.2d 346; 2011 NY Misc. LEXIS 1171 [Sup. Ct. App. Term 1st Dept. 2011), the Court, affirming the dismissal of a small-claims action in civil court seeking restitution for child-support overpayments, held that:

The proper forum for plaintiff’s alleged grievances lies within the “exclusive original jurisdiction” of Family Court, not Civil Court (Family Court Act § 411; see Lashley v Jones, 25 Misc 3d 72, 73, 890 N.Y.S.2d 245 [2009]). Dismissal of the small claims action thus achieves “substantial justice” consistent with substantive law principles (CCA 1807; see Crosswell v Crosswell, 21 Misc 3d 131[A], 873 N.Y.S.2d 510, 2008 NY Slip Op 52051[U] [2008]).

Accordingly, this Court concludes, based upon the foregoing, that OCSE’s motion to quash plaintiff’s subpoena motion and for a protective order issued to prevent the release of the confidential information contained in the cancelled checks should be granted in all respects.

The foregoing constitutes the decision and order of the Court.

HON. Richard G. Latin

Judge, Civil Court

Even if it were possible to raise the defense orally at trial to preclude testimony about certain allegations in the petition, as the Respondent did in this case, the application would have to be denied on substantive grounds. Under the estoppel doctrines of res judicata and collateral estoppel, each requires a showing that there was an identity of the parties in the present and prior litigation (Juan C. v Cortines, 89 NY2d 659 [1997]), that the claims arose out of the same transaction or series of transactions (Xiao Yang Chen v Fischer, 6 NY3d 94 [2005]), that the parties had a full and fair opportunity to contest the claims (Krista I. v Gregory I., 8 AD3d 696
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[3d Dept 2004]) and the prior litigation resulted in an adjudication on the merits (Charles E. v Frank E., 72 AD3d 1439 [3d Dept 2010]). On the facts of this case, there was never an adjudication on the merits for the incidents of April 3, 2006 and March 22, 2007 because the second family offense petition was withdrawn. With regard to the incident of April 3, 2006 which was pled in the initial family offense petition, there was no adjudication on the merits since that matter was concluded with the entry of an order of protection and a suspended judgment on consent of the Respondent without an admission of wrongdoing and without any stipulation by the Petitioner that she would not replead these claims in any future proceedings. Since the court did not enter any factual findings, as it does when a parent consents to the jurisdiction of the court under Section 1051(a) of the Family Court Act in Article X proceedings, no adjudication on the merits took place (Mirelle F. v Renol F., 4 Misc 3d 1011(a) [Sup Ct Queens County 2004]) and there is nothing which could affect or bind the Petitioner in the future (Metz v People, 73 Misc 2d 219 [Sup Ct Nassau County 1973]; Lockwood v Lockwood, 23 Misc 3d 679 [Fam Ct Otsego County 2009].

With regard to the remaining contentions, the Petitioner’s testimony about the events of April 3, 2006 and March 22, 2007 is admissible as direct evidence in support of the claims she put forth in the instant petition. Her petition alleges a course of criminal conduct that has been ongoing, even preceding “the most serious incident” on April 3, 2006 and going up to and including “the most recent incident” of December 28, 2008. Petitioner’s testimony about the incident of April 3, 2006 is admissible as direct evidence of that claim and her testimony about the incident of March 22, 2007, in the absence of a Bill of Particulars to narrow the issues to be tried, is admissible as one of the incidents occurring between the “most serious” and the “most recent” incidents.

It is not necessary to reach the question of whether the Petitioner’s testimony about the incidents of April 3, 2006 and March 22, 2007 might also be admissible as an exception to the hearsay rule since the testimony is admissible as proof of the allegations in the petition. Having reviewed the pleadings, the testimony given by the Petitioner, and the prior dockets from New York County, and having heard oral argument from criminal counsel for the parties; and having read and considered the applicable case law identified through the Court’s own research; and due deliberation having been had thereon, the motion to preclude the Petitioner’s testimony about the incidents of April 3, 2006 and March 22, 2007 is denied.

Brooklyn, New York

1. In the January 14, 2009 pleading, the Petitioner alleged: The most recent incident was on December 28, 2008 at in front of 14th pct: the petitioner states that the respondent got angry at the petitioner and began to verbally assault her in front of the children telling her that she had better fucking listen’ to him. The petitioner states that the respondent always uses profanity against her threatening her bodily harm should she ever undermine his authority. On 11/18/08 the respondent threatened the petitioner that if she was change their children’s school [sic] that she will see what happens to her. The most serious incident that occurred between the petitioner and respondent on 4/3/06 when the respondent tired [sic] to physically remove the petition from the home causing the petitioner to hit against the elevator. The petitioner was then fearful that she may have miscarried. The petitioner also uses corporal punishment against the children when he gets angry.”
2. Under Docket #O-05234/06, filed on April 24, 2006, the Petitioner alleged an incident occurred on April 3, 2006 at the Respondent’s apartment when she was visiting her three children. She claimed the Respondent told her she would not be able to see the children at the apartment… Respondent became very aggressive when she came back to get her cell phone that she had left in the apartment. Respondent told her to go and get out of the F building if she wants her cell phone. Respondent grabbed her left arm and started pulling her into the elevator. Petitioner was able to get out of the elevator…to head for the stairs. Respondent came towards petitioner. Respondent wrapped his arms around her body, grabbing her tightly. Respondent pulled petitioner towards the elevator and while petitioner was trying to get away, respondent threw her into the elevator. Petitioner hit the wall of the elevator injuring her right wrist and shoulder. Respondent was verbally abusive towards petitioner calling her a Bitch and an asshole.’ This petition also contained an allegation concerning an incident in 2005. Two days after the initial petition was filed, the Petitioner filed a Petition to Modify the Order of Protection (Supplemental A) which was granted the same day. Supplemental B, a second Petition to Modify the Order of Protection was filed on March 28, 2007.
3. In Docket #O-02278/08, filed on February 14, 2008, the Petitioner alleged that on January 9, 2008 at the school gym at MS 104 the Respondent “became very aggressive with the petitioner by coming in her face, making a fist and grinding his teeth. Respondent called petitioner obscene and degrading names such as fucking bitch…you are being a vindictive bitch and doing out of spite…you are going to be in fucking trouble, I am going to take you back to court but I guess this is what you want.’ Respondent did this in front of their 11 year old son and his whole gym class. The Petitioner also included an allegation from April 3, 2007 [sic] in which she claimed that “while in an elevator respondent grabbed and bear hugged the petitioner very tightly and she hit the wall causing her bruises in her arms and legs” and an allegation from March 22, 2007 that “as Petitioner was bringing their infant daughter to the drop off location for visitation, respondent intercepted her as she was approaching, became physically abusive and took the baby carriage with force as the respondent’s girlfriend blocked the petitioner so she could not get away.”
4. L.2010, c. 341, § 5. In addition to amending Section 812 of the Family Court Act, the new law also amended Sections 446, 551, 656, 759, 842, and 1056 of the Family Court Act, and Section 240 of the Domestic Relations Law.


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