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CPLR § 2307


2011 NY Slip Op 52316
Russell B. Jenkins, Plaintiff(s),
Denise McKinney, Defendant(s).
Civil Court of the City of New York, Queens County
Decided on November 18, 2011

Appearances of counsel:
Plaintiff’s Counsel: Ira Bierman, Esq., Syosset, New York;
For OCSE: Elizabeth Haynes, Esq., Of Counsel Michael Cardozo, Esq. Corporation Counsel of the City of NY, New York, New York

Richard G. Latin, J.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion by the for an order granting a protective order against plaintiff’s subpoena and/or quashing the subpoena pursuant to CPLR §§2304, 2307 and 3103.
Papers Numbered

Notice of Motion – Affidavits – Exhibits – Service
Amended Notice of Motion- Exhibits – Service
Affirmation in Opposition – Exhibits – Service
Reply Affirmation – Exhibits – Service
This motion presents an issue an issue of first impression; that is, whether records from (the New York City Human Resources Administration, Office of Child Support Enforcement,) New York State Child Support Management System database, may be subpoenaed for use in an action by a former custodial parent seeking to recoup alleged overpayments in a Civil Court
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action. For the reasons that follow, this Criminal Court concludes that such records should not be ordered disclosed by the Court.

The Office of Child Support Enforcement (hereinafter “OCSE”) moves to quash the plaintiff’s court-ordered subpoena duces tecum. OCSE contends that the plaintiff failed to comply with New York Civil Procedure Law Section (“CPLR”) §2307 by failing to give OCSE at least one day’s notice of the motion of the subpoena prior to its issuance. Additionally, OCSE requests the Court to grant a protective order against the plaintiff’s subpoena pursuant to CPLR § 3103 because the plaintiff’s subpoena seeks confidential information.

Pursuant to CPLR § 2307, a party wishing to serve a judicial subpoena duces tecum on any governmental agency must afford the city agency at least one day’s notice to object to the issuance of the subpoena on legitimate grounds. The purpose of this one-day period is to adequately afford the city agency an opportunity to make an application to prevent the inappropriate disclosure of any subpoenaed material. (See People v Santos, 64 NY2d 702 [1984]). However, this Court finds that this contention is rendered moot by the fact that the plaintiff in this case has taken advantage of a full and fair opportunity to oppose this subpoena duces tecum via the instant motion to quash. (See People v. Duran, 2011 NY Slip Op 21162; 32 Misc 3d 225; 921 N.Y.S.2d 826; 2011 NY Misc. LEXIS 2069 [Crim. Ct. Kings Co. 2011).

Next, OCSE contends that this Criminal Court should grant a protective order pursuant to CPLR §3103 preventing the disclosure sought by the plaintiff because the information is confidential. Pursuant to CPLR §3103(a) “[t] he court may make a protective order denying, limiting, to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts”.

In order to determine whether OCSE is entitled to a protective order denying the disclosure of cancelled check records and financial data, the court should consider the same factors that would be considered on a motion for the issuance of a subpoenas duces tecum. As such, the movant must first satisfy the threshold requirement that the disclosure sought is “material and necessary,” whether the request is directed to a party or non-party (see CPLR §3101[a](1); [a][4]). The plaintiff claims the documents are necessary because the defendant denies receipt of the monies, and therefore, copies of the cancelled checks prove actual receipt so that they can proceed with their action to reclaim the alleged overpayment of child support. Generally, disclosure in New York civil actions is guided by the principle of “full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR §3101(a)). The phrase “material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of “usefulness and reason”(Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The plaintiff’s need for the cancelled checks appears colorable under this standard because whether or not the funds were actually received is germane to the claim the plaintiff is pressing upon this court. Therefore the first prong of the standard set forth under CPLR § 3101(a)(4) appears to be satisfied.

Where a request for discovery from a nonparty is challenged solely on the ground that it exceeds the permissible scope of matters material and necessary in the prosecution or defense of the action, a motion to quash is properly denied if that threshold requirement is satisfied (see Samide v Roman Catholic Diocese of Brooklyn, 16 AD3d 482, 483, [2d Dept. 2005) or properly
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granted if the discovery sought is not material and necessary (see Mendelovitz v Cohen, 49 AD3d 612.[2d Dept. 2008]). OCSE contends that the attempt to obtain the checks is beyond the scope of the child support matters.

OCSE also contends that the plaintiff request for cancelled checks should be denied because the information sought is confidential and precluded from release to third parties pursuant to Social Service Law §111- v(1) and 42 USCS §654.
42 USCS § 654 provides, in pertinent part, that:
A State plan for child and spousal support must—(26) have in effect safeguards, applicable to all confidential information handled by the State agency, that are designed to protect the privacy rights of the parties, including—
(A) safeguards against unauthorized use or disclosure of information relating to proceedings or actions to establish paternity, or to establish, modify, or enforce support, or to make or enforce a child custody determination;

New York Social Services Law § 111-v provides, in pertinent part that:
1. The department, in consultation with appropriate agencies including but not limited to the New York state office for the prevention of domestic violence, shall by regulation prescribe and implement safeguards on the confidentiality, integrity, accuracy, access, and the use of all confidential information and other data handled or maintained, including data obtained pursuant to section one hundred eleven-o of this article and including such information and data maintained in the automated child support enforcement system. Such information and data shall be maintained in a confidential manner designed to protect the privacy rights of the parties and shall not be disclosed except for the purpose of, and to the extent necessary to, establish paternity, or establish, modify or enforce an order of support.

Confidential information is any information relating to a specified individual or an individual who can be identified by reference to one or more factors specific to him or her, including but not limited to the individual’s social security number, residential and mailing addresses, employment information, and financial information.(45 CFR § 303.21). The Code of Federal Regulations § 307.13 limits the disclosure of confidential information to entities outside OCSE. SSL §111-v(4) and 18 NYCRR §347.10 (a)(1) and (f) provide for criminal sanctions for disclosure. Accordingly, OCSE asserts that pursuant to NY Social Service law § 111-v(1), disclosure of cancelled checks would provide the plaintiff with access to confidential information such as address and financial data and is thus, impermissible.

Here, the plaintiff’s subpoena sought the production of “copies of the back and front of all checks issued Denise McKinney ranging from January 13, 2009 through May 12, 2009” and all records “setting forth all monies garnished from plaintiff’s employer for the period from January 13, 2009 through December 22, 2009. The financial information being sought by the plaintiff may contain the address of the parties and financial information that is protected information described in the statute. Although the information being sought by the subpoena is “material and necessary” to the claim to prove overpayment of child support and within the scope of matters reasonable related to proving such a claim, this type of information is expressly protected by the New York statute and should not be released by OCSE.
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The only express exception this 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 criminal 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 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

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