ROSENTHAL v. VANERIA (1998)

Supreme Court, Appellate Division, First Department, New York.

Susanne ROSENTHAL (Norman), Plaintiff-Respondent, v. John S. VANERIA, Defendant-Appellant.

Decided: November 24, 1998

Before LERNER, P.J., WILLIAMS, TOM and ANDRIAS, JJ.

Joanne A. Zervos, for Plaintiff-Respondent. Alfred F. Sica, for Defendant-Appellant.

Order, Supreme Court, New York County (Joan Lobis, J.), entered on or about February 25, 1997, which denied defendant's motion for a downward modification of child support, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered June 26, 1997, which denied defendant's motion to reargue, unanimously dismissed, without costs, as taken from an nonappealable order.

The IAS court correctly found that the child's residence at a facility for special needs children is not a permanent residence away from plaintiff's residence, and therefore not an emancipation event under the parties' separation agreement. Plaintiff showed that the facility endeavors to instill the skills needed to allow the children to return home, and that the child's eligibility is determined on a year-to-year basis. We are also persuaded that the facility is akin to a boarding school, residence at which is specifically referred to in the separation agreement as “not in itself” an emancipation event.

MEMORANDUM DECISION.

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