MTR. OF KAREN B. v. WILLIE B.

Joslyn A. Tucker, New York City, for respondent. Michael A. Cardozo, Corporation Counsel (Richard J. O'Halloran and Scott Caplan of counsel), for New York City Support Collection Unit.

OPINION OF THE COURT

JOHN M. HUNT, J. Respondent, Willie B., has filed objections pursuant to Family Court Act § 454 (5) challenging the determination of the New York City Support Collection Unit that his driving privileges should be suspended by the State Department of Motor Vehicles based upon its determination that he owes child support arrears in a total amount greater than the amount of court ordered child support that would be due in a four-month period (Social Services Law § 111-b [12] [b] [1]). By order of this court, dated August 6, 2004, proceedings upon respondent's objections were held in abeyance and the New York City Support Collection Unit (SCU) was directed to file a current account statement setting forth respondent's payments and its receipt of monies under the order of support (Social Services Law § 111-h [10]). In addition, counsel for SCU was directed to submit documentation concerning SCU's past and present issuance of income executions pursuant to Civil Practice Law and Rules § 5241 for enforcement of the order of support. The SCU and its attorneys have submitted the documentation requested by the court and no further submissions have been received from the respondent. By order of the Family Court, Queens County, dated March 29, 2000, respondent was directed to pay support in the amount of $500 biweekly on behalf of the parties' two children. The March 29, 2000 order directed that respondent remit child support payments through the SCU (see, Family Ct Act § 440 [1] [a]; Social Services Law § 111-h), and the account statement prepared by SCU reflects that an income execution for support was sent to respondent's employer and that the first payment under that income execution in the amount of $250 was received by SCU on July 25, 2000.^[1] According to the court record and SCU's accounting statement, respondent should have paid a total of $55,652 under the order of support as of August 11, 2004 and that he had actually paid a total of $34,625.65, leaving v Inversa, 293 AD2d 611, 612 [2002]; Matter of Beal v Beal, at 314). However, if the court finds that the Support Collection Unit's determination "is based upon a clearly erroneous determination of fact or error of law . . . the court shall direct the support collection unit not to notify the department of motor vehicles to suspend the support obligor's driving privileges" (Family Ct Act § 454 [5]). Of particular relevance to this case is a provision contained in Social Services Law § 111-b (12) (b) (3), which reads as follows:

"Notwithstanding the requirements of this subdivision, no notice shall be issued by the department [of social services] pursuant to subparagraph one of this paragraph to a support obligor from whom support payments are being received by the support collection unit as a result of an income execution or an income deduction order issued pursuant to section five thousand two hundred forty-one or five thousand two hundred forty-two of the civil practice law and rules."

The suspension of driving privileges on account of unpaid support is considered a "penalty" (Matter of Kennedy v Kennedy, 251 AD2d 407, 409 [1998], lv denied 92 NY2d 818 [1999]), and Social Services Law § 111-b (12) (b) (3) has been construed so as to preclude the suspension of driving privileges as a support enforcement mechanism by the Support Collection Unit where support payments are being received by way of an income execution or income deduction order issued under Civil Practice Law and Rules § 5241 or § 5242 (id.).^[3] In its decision in Matter of Kennedy, the Appellate Division held, inter alia, that "[t]he SCU may not invoke the license suspension penalty when it is receiving payments pursuant to an income execution order," and in that case the father "presented evidence that an income execution order. . . remained in effect, and the SCU failed to offer any evidence to refute that claim" (id. at 409). In the case before this court, the account and record statement prepared by SCU indicates that as of August 11, 2004 it mechanisms are not required in order to collect child support from the respondent.^[5] Therefore, upon review of the record and the submissions of the respondent and the Support Collection Unit, this court finds SCU's determination to seek suspension of respondent's driving privileges to be erroneous as a matter of fact or law and respondent's objections are affirmed in accordance with Family Court Act § 454 (5). It is therefore ordered that the objections filed by the respondent pursuant to Family Court Act § 454 (5) are granted and the Support Collection Unit is directed not to notify the Department of Motor Vehicles to suspend respondent's driving privileges (Family Ct Act § 454 [5]). [1] According to SCU, respondent made payments in the amount of $3,280 directly to SCU during the period of April 25, 2000 and October 12, 2000. [2] The May 20, 2004 payment was received from an employer identified as "Mercyhome" and on May 25, 2004 SCU received a payment in the amount of $238.99 from Brookdale Hospital. [3] In addition to the suspension of driving privileges as a penalty for the failure to pay support, New York law also provides for the suspension of a parent's professional, occupational or business license, as well as the suspension of a parent's recreational license for nonpayment of support (Family Ct Act § 454 [2] [f], [g]; §§ 13219; 458-b, 458-c). [4] An income execution may be served upon a parent's "current or subsequent employer" (CPLR 5241 [c] [1] [iv]), and a parent's former employer is required to inform the Support Collection Unit if a parent's employment terminates as well as the name and address of the parent's new employer if known to the former employer (CPLR 5241 [c] [1] [ix]). [5] Regardless of whether or not respondent's driving privileges are suspended, he remains liable for payment of all past-due child support (Matter of Dox v Tynon, 90 NY2d 166, 173-174 [1997]; Matter of Cook v Miller, 4 AD3d 745, 746 [2004]).