State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 18, 2016 517529 

________________________________

In the Matter of FRANCISCO 

CORDERO,

Appellant,

v

MEMORANDUM AND ORDER

COMMISSIONER OF SOCIAL 

SERVICES, SUPPORT 

COLLECTION UNIT, on Behalf 

of ELIZABETH SORIANO,

Respondent.

________________________________

Calendar Date: January 8, 2016

Before: Peters, P.J., Garry, Egan Jr., Devine and Clark, JJ.

__________

Francisco Cordero, Napanoch, appellant pro se.

Stephen M. Dorsey, County Attorney, Ballston Spa (Michael

J. Hartnett of counsel), for respondent.

__________

Clark, J.

Appeal from an order of the Family Court of Saratoga County

(Jensen, J.), entered August 8, 2013, which, in a proceeding

pursuant to Family Ct Act article 4, denied petitioner's

objections to the order of a Support Magistrate.

Petitioner, the father of a son (born in 1994), has been

incarcerated since 2009. Although a Warren County Support

Magistrate (Clark Jr., S.M.) suspended petitioner's child support

obligation upon consent in 2012, petitioner continued to owe

retroactive support to Saratoga County for the repayment of

public assistance funds received by the child. To recoup these
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funds, respondent issued an income execution order against

petitioner's inmate account, thereby garnishing his weekly

"program stipend" from the Department of Corrections and

Community Supervision. Petitioner commenced this proceeding in

Saratoga County seeking to, among other things, suspend the

income execution order until he has been released from prison and

has had an opportunity to obtain employment. The Support

Magistrate (Densmore, S.M.) dismissed petitioner's application

for want of jurisdiction, and Family Court denied petitioner's

written objections to the Support Magistrate's order. Petitioner

appeals, and we affirm.

Family Ct Act § 440 (1) (a) provides that, where a child

has received public assistance, the payment of retroactive child

support is to be enforced by the local support collection unit

"pursuant to an execution for support enforcement as provided for

in [CPLR 5241 (b)], or in such periodic payments as would have

been authorized had such an execution been issued. In such case,

[Family C]ourt shall not direct the schedule of repayment of

retroactive support." Inasmuch as it lacked the authority to

modify the repayment schedule set by respondent to recoup

retroactive support that petitioner owed to Saratoga County,

Family Court properly dismissed petitioner's application to

suspend the income execution order imposed against his inmate

account (see Family Ct Act § 440 [1] [a]; Matter of Tosques v

Ponyicky, 89 AD3d 1097, 1098 [2011]; Matter of Commissioner of

Social Servs. of City of N.Y. v Daryl S., 235 AD2d 126, 130-131,

133 [1997]; Matter of Stokley v Dorville, 177 Misc 2d 86, 89-92

[Fam Ct, Kings County 1998]). Petitioner's remaining

contentions, to the extent that they have not been addressed,

have been considered and found to be lacking in merit.

Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court