L.B., Petitioner, v. M.B., Respondent. (2026)

Before this Court is Petitioner's motion to confirm the Support Magistrate's Findings of Fact and Recommendation of commitment under Family Court Act §§ 439(a) and 454. At the core of Respondent's defense is his attempt to rely entirely on an administrative Social Security Disability award letter to avoid incarceration for non-payment of child support, while simultaneously refusing to disclose the underlying medical records substantiating his claimed total disability.

This Court holds that an administrative disability award letter is no substitute for competent medical proof and pre-trial disclosure. A respondent in a child support enforcement proceeding cannot assert an alleged medical condition as a "sword" to excuse non-payment while at the same time invoke the physician-patient privilege under CPLR 4504(a) as a "shield" to deprive Petitioner of meaningful discovery. Having placed his physical condition directly at issue, Respondent's refusal to disclose his medical records warrant striking his medical defense.

Upon an independent review of the record, the Support Magistrate's finding of willful non-payment is confirmed. Respondent is committed to the custody of the New York City Department of Correction for a period of thirty (30) days, with a purge amount set at $5,000.00 payable forthwith.

On February 25, 2026, a cumulative money judgment of $42,737.50 was entered against Respondent for child support arrears. The underlying order of support continued Respondent's basic child support obligation at $25.00 per month and added a temporary payment of $250.00 per month toward arrears, payable through the Support Collection Unit.

Following a willfulness hearing at which both parties had notice and a full and fair opportunity to be heard, Support Magistrate Pompey issued Findings of Fact determining that Respondent willfully failed to obey the lawful order of support. The Support Magistrate recommended that Respondent be committed to jail for thirty (30) days and established a purge amount of $5,000.00. Petitioner now moves to confirm the Support Magistrate's Findings of Fact and Recommendation of Commitment.

Respondent is 57 years old, holds a bachelor's degree in criminal justice, and attended law school without graduating. His employment history is predominantly in the restaurant and hospitality industry. Before the parties' January 10, 2025, divorce judgment, Respondent was the family's sole provider. Respondent contends that he is not voluntarily underemployed relative to his education and asserts a total inability to work due to a lymphoma diagnosis received in 2021 or 2022.

At the willfulness hearing, Respondent submitted an administrative letter from the Social Security Administration reflecting his receipt of Social Security Disability benefits and the determination date. Respondent intentionally withheld his underlying clinical records and refused to execute HIPAA-compliant authorizations, asserting a personal right to medical privacy. He maintained that the federal administrative determination alone was sufficient proof of incapacity, citing the well-known difficulty of obtaining disability benefits. Respondent testified that his last chemotherapy treatment occurred in the summer of 2025 and that he continues ongoing with oncology care. Respondent expressed a desire to return to work when able, noting that federal rules restrict the income he can earn without jeopardizing his benefits.

The evidentiary record establishes that Respondent engaged in various business and employment activities during the period of his alleged total disability:

1. In January 2023, Respondent co-founded a catering and food business, The Lifted Restaurant Group Inc., with a partner, investing $10,000.00. This venture allowed Respondent flexible, limited hours. The business worked on its first and only 2023 event in August 2023. The corporation remains active in New York, and its last operational date reported to the New York State Department of Taxation and Finance was February 14, 2025. Although filings were made to conduct an event in New Jersey, no business was conducted there. Respondent testified that he walked away from the business in May or June 2024 because it generated no profit, transferring the food truck and equipment to his partner, who had funded the vehicle and its buildout. Respondent disclaimed any connection to his former partner's subsequent business operations.

2. Following his departure from the catering venture, Respondent obtained employment at a restaurant, completing approximately six shifts over two weeks before leaving because Respondent claimed he was physically unable to continue.

3. In October 2024, facing eviction and unable to meet his expenses in Westchester County, New York, Respondent relocated to his mother's home in Delaware County, New York. Respondent pays no rent but contributes toward household expenses, including electric, cable/internet, food, and heating wood.

Respondent's financial disclosures and hearing testimony reveal substantial financial activity and discretionary expenditures that undermine his claim of an absolute inability to pay child support:

• In March 2025, Respondent received a retroactive lump-sum Social Security Disability payment. Rather than allocating any portion of these funds toward his child support arrears or his $25.00 monthly obligation, Respondent used the entire lump sum to repay informal debts owed to friends and family.

• Respondent receives $1,290.00 per month in Social Security Disability benefits, which he identifies as his sole income.

• Despite receiving $1,290.00 per month, Respondent maintains an ongoing monthly vehicle loan payment of $1,236.00—an expense that consumes nearly 96% of his monthly disability benefit.

• Respondent owns a motorcycle valued between $4,500.00 and $6,000.00, which he listed for sale on Facebook Marketplace for approximately $7,000.00.

• Bank records show frequent travel between Delaware County and the New York City metropolitan area. While Respondent explained that his treating physicians (an oncologist, urologist, orthopedic surgeon, and primary care physician), friends, and personal lenders are in New York City—and that he rented hotel rooms for early medical appointments—his statements also reveal discretionary spending, including recurring payments to an online subscription platform (OnlyFans), which he claimed was a forgotten trial, and purchases at a hydroponic retail store.

• Respondent admitted that following the divorce proceedings, he failed to pay his $25.00 monthly child support obligation for three consecutive months, testifying that he simply "forgot" to pay because he expected the Support Collection Unit to contact him with billing instructions.

• Respondent carries consumer and personal debt exceeding $100,000.00, exclusive of his vehicle loan, and asserts that his credit and financial safety net are exhausted.

Upon a motion to confirm a Support Magistrate's finding of willful violation, Family Court Act §§ 439(a) and 454 require the Family Court to conduct an independent review of the record to determine whether the findings are supported by competent evidence. The credibility determinations of the Support Magistrate, who observed the witnesses and evaluated their demeanor firsthand, are entitled to substantial deference (Matter of Garuccio v Curcio, 174 AD3d 804, 805 [2d Dept 2019]). The record confirms that both parties received a full and fair opportunity to be heard, and the Support Magistrate's findings are fully supported by the credible evidence.

Under Family Court Act § 454(3)(a), proof of a Respondent's failure to pay court-ordered child support constitutes prima facie evidence of a willful violation of a lawful support order (Matter of Powers v Powers, 86 NY2d 63, 69 [1995]). Once non-payment is established, the burden shifts to the respondent to offer competent, credible evidence demonstrating an inability to make the required payments (Matter of NYS Child Support Processing Ctr. v S.S., 211 AD3d 434, 435 [1st Dept 2022]; (Matter of Maria T. v Kwame T., 142 AD3d 911, 912 [1st Dept 2016]).

Where a respondent asserts that an illness or medical condition precludes employment, the First Department requires rigorous, competent medical documentation linking the diagnosis directly to a total functional incapacity to work (Matter of Linda D. v Theo C., 166 AD3d 505, 505 [1st Dept 2018]; (Matter of Rivera v Diaz, 137 AD3d 463, 464 [1st Dept 2016]).

C. Insufficiency of Administrative Social Security Disability Determinations

Respondent contends that his administrative Social Security Disability award letter conclusively establishes his medical defense. This argument is rejected.

The First Department has consistently held that administrative determinations of disability by federal agencies are not binding on the Family Court in determining whether a parent has the physical or financial capacity to pay child support (Matter of Kenneth Rodriguez v Elizabeth Malave-Rodriguez, 148 AD3d 523, 523 [1st Dept 2017]; (Matter of Commissioner of Social Servs. v Rosen, 289 AD2d 23, 24 [1st Dept 2001]). An administrative disability award evaluates eligibility under broad statutory standards; it does not provide the clinical data necessary for the court to assess a parent's actual, functional, day-to-day capacity to work or satisfy a support obligation. Specifically, an award letter fails to provide:

1. Objective clinical findings, diagnostic imaging, and pathology reports;

2. The specific date of onset and projected duration of total incapacity; and

3. Explicit physical or cognitive restrictions documented by treating medical providers.

An administrative award letter alone cannot satisfy Respondent's burden to prove a total inability to pay.

Likewise, Respondent cannot invoke his cancer diagnosis to avoid incarceration while simultaneously withholding his clinical records under CPLR 4504(a). This "sword and shield" tactic is impermissible. A litigant waives the physician-patient privilege when affirmatively placing their physical or mental condition at issue as a claim or defense (Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; (Geffner v North Shore Univ. Hosp., 57 AD3d 471, 472 [1st Dept 2008]). By interposing his lymphoma diagnosis as an absolute medical defense to contempt, Respondent placed his health squarely at issue and waived the statutory privilege.

By refusing to disclose his medical records, Respondent deprived Petitioner of her fundamental right to disclosure and meaningful cross-examination under CPLR Article 31 (Aris v Reliable Delivery Serv., Inc., 274 AD2d 315, 316 [1st Dept 2000]). Petitioner was entitled to inspect the underlying oncology records, clinical notes, and treatment schedules to test whether Respondent's condition resulted in a total incapacity to work or permitted modified, part-time, or sedentary employment. Because Respondent willfully withheld the evidence necessary to scrutinize his defense, this Court strikes his medical defense and draws an adverse inference against him on the issue of physical incapacity. Any claim that the disclosure of medical records would be exploited is sheer speculation and could have been subject to a protective order

Even apart from the absence of competent medical proof, Respondent's financial conduct demonstrates willful non-payment. When Respondent received a substantial lump-sum retroactive disability payment in March 2025, he chose to distribute those funds exclusively to friends and family, paying nothing toward his child support arrears. Prioritizing informal debts to personal acquaintances over a court-ordered child support obligation is clear evidence of willfulness.

Moreover, Respondent allocates $1,236.00 per month to a vehicle loan—absorbing nearly 96% of his monthly disability benefit—while failing to pay even his minimal $25.00 monthly basic support obligation. Respondent also holds unliquidated equity in a motorcycle valued up to $6,000.00 and engaged in recurring discretionary spending on travel, lodging, online subscriptions, and retail purchases. Finally, Respondent admitted that he simply "forgot" to pay his support for three consecutive months following the divorce.

Respondent has failed to present credible, competent evidence rebutting the statutory presumption of willfulness.

ACCORDINGLY, it is hereby:

ORDERED, that Petitioner's motion to confirm the Support Magistrate's Findings of Fact and Recommendation is GRANTED; and it is further

ORDERED, that the Findings of Fact of Support Magistrate Pompey, finding Respondent in willful violation of the order of support, are CONFIRMED in their entirety; and it is further

ORDERED and ADJUDGED, that Respondent is in willful contempt of this Court for his failure to obey a lawful order of support; and it is further

ORDERED, that Respondent is committed to the custody of the New York City Department of Correction for a period of thirty (30) days; and it is further

ORDERED, that Respondent may purge himself of this commitment and avoid or terminate his incarceration by paying the purge amount of $5,000.00 forthwith to the Support Collection Unit or directly to the Court for disbursement to Petitioner; and it is further

ORDERED, that all prior support orders and judgments entered herein remain in full force and effect.

This constitutes the decision and order of the court

Dated: October 26, 2026

Bronx, NY

HON. ANGEL CRUZ, J.F.C.

Angel Cruz, J.