HAMZA v. HAMZA

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiff former husband which was to recoup overpayments in child support is denied.

While the recoupment of child support payments is, under certain circumstances, permissible (cf., Tuchrello v. Tuchrello, 233 A.D.2d 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 A.D.2d 510 [2d Dept., Nov. 29, 1999]).

BRACKEN, J.P., KRAUSMAN, McGINITY, and SCHMIDT, JJ., concur.