IN RE: Jeffrey L. SOLOMON (2026)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, in effect, in the nature of prohibition to prohibit the Nassau County Department of Social Services Support Collection Unit from enforcing the payment of the petitioner's alleged child support arrears, the petitioner appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered January 31, 2022.  The order denied the petitioner's motion, among other things, pursuant to CPLR 5015(a)(3) to vacate a judgment of the same court dated March 11, 2020, denying the petition.

ORDERED that the order is affirmed, with costs.

In 2006, a matrimonial action between Jeffrey Solomon and his former wife was commenced in the Supreme Court.  In September 2007, Solomon and his former wife apparently entered into a stipulation of settlement, which was incorporated but did not merge with a January 2008 judgment of divorce.  Pursuant to the stipulation and judgment of divorce, Solomon became obligated to pay child support.  An order dated March 26, 2018, made after a hearing, addressed Solomon's and Solomon's former wife's various post-judgment of divorce applications.  Thereafter, it appears that the Nassau County Department of Social Services (hereinafter the DSS), through its Support Collection Unit, took actions to collect child support arrears from Solomon.

In September 2019, Solomon commenced this CPLR article 78 proceeding against Paul F. Broderick, in his capacity as the DSS's Acting Commissioner, inter alia, in effect, to enforce the order dated March 26, 2018, and to prohibit the DSS's Support Collection Unit from enforcing payment of his alleged child support arrears.  In October 2019, in response to the petition, the DSS submitted an affirmation of Ellen Abberbock, an attorney employed with the DSS's Support Collection Unit, together with records regarding the alleged arrears.  In a judgment dated March 11, 2020, the Supreme Court denied the petition.

In June 2021, the petitioner moved, inter alia, pursuant to CPLR 5015(a)(3) to vacate the judgment dated March 11, 2020, on the ground that Abberbock had no authority to act on behalf of the DSS, and for various sanctions against Abberbock on that ground.  The DSS opposed the motion.  In an order entered January 31, 2022, the Supreme Court denied the petitioner's motion.  The petitioner appeals.

Contrary to the petitioner's contention, the Supreme Court properly denied that branch of his motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment dated March 11, 2020 (see Taunton Metals of Fla., Inc. v Solutions in Stainless, Inc., 234 AD3d 726).  CPLR 5015(a)(3) “permits a court to vacate a judgment or order on the basis that a party may have been prevented from fully and fairly litigating the matter due to fraud, misrepresentation, or other misconduct of an adverse party in obtaining the judgment or order” (Abakporo v Abakporo, 202 AD3d 646, 649 [internal quotation marks omitted];  see Taunton Metals of Fla., Inc. v Solutions in Stainless, Inc., 234 AD3d 726;  Bank of N.Y., N.A. v Scarso, 233 AD3d 739, 740).  Here, the petitioner failed to satisfy his burden of establishing that the judgment was procured through fraud or other misconduct (see Washington Mut. Bank v Baldera, 208 AD3d 1278, 1280;  cf.  Belesi v Connecticut Mut. Life Ins. Co., 272 A.D.2d 353, 354).

The Supreme Court also properly denied that branch of the petitioner's motion which was for leave to renew.  “A motion for leave to renew ‘shall be based upon new facts not [previously] offered ․ that would change the prior determination ․ and ․ shall contain reasonable justification for the failure to present such facts’ ” earlier (Clerveaux v Kensington Ins. Co., 234 AD3d 665, 666, quoting CPLR 2221[e][2], [3] ).  Here, the petitioner failed to offer new facts that would have changed the court's prior determination denying the petition (see CPLR 2221[e][2];  Bockstruck v Town of Islip, 219 AD3d 439, 443;  Valentine v Weber, 203 AD3d 992, 994).

The petitioner's remaining contentions, including that Abberbock committed deceit within the meaning of Judiciary Law § 487, are without merit.

DILLON, J.P., IANNACCI, DOWLING and MCCORMACK, JJ., concur.