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In re Hoey-Kennedy, v. Kennedy

Appellate Division of the Supreme Court of New York, Second Department
May 28, 2002
742 N.Y.S.2d 573 (N.Y. App. Div. 2002)

Opinion

01-03548

Submitted April 11, 2002

May 28, 2002.

In a proceeding pursuant to Family Court Act article 4, the petitioner appeals from an order of the Family Court, Nassau County (Eisman, J.), dated March 23, 2001, which, upon the granting of the father's motion for leave to reargue, sustained the father's objections to an order of the same court (Dwyer, H.E.), dated November 29, 2000, which, after a hearing, dismissed his petition for a downward modification of child support and remitted the matter to the Hearing Examiner, inter alia, to recalculate the father's child support obligations.

Jacqueline Hoey, Dix Hills, N.Y., appellant pro se.

Certilman Balin Adler Hyman, East Meadow, N.Y. (Meredith W. Ayres of counsel), for respondent.

ANITA R. FLORIO, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

It is well settled that "a motion for reargument is addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision" (Long v. Long, 251 A.D.2d 631). Here, the Family Court providently exercised its discretion in granting the father's motion for leave to reargue his objections to the dismissal of his petition for a downward modification. Contrary to the mother's contention, the Family Court did not base its decision on new facts, but rather, found that the prior order dismissing the father's petition was based on a misapprehension of the facts.

Furthermore, upon reargument, the Family Court properly sustained the father's objections. The father made a prima facie showing of a change in circumstances (see Domestic Relations Law § 236B[9][b]). The evidence adduced at the hearing established that the mother had sold the marital residence and, thus, the shelter care costs for the children required recalculation. In addition, there was evidence that the child care costs had changed because the children are older.

The mother's remaining contentions are without merit.

FLORIO, J.P., SMITH, KRAUSMAN and TOWNES, JJ., concur.


Summaries of

In re Hoey-Kennedy, v. Kennedy

Appellate Division of the Supreme Court of New York, Second Department
May 28, 2002
742 N.Y.S.2d 573 (N.Y. App. Div. 2002)
Case details for

In re Hoey-Kennedy, v. Kennedy

Case Details

Full title:IN THE MATTER OF JACQUELINE HOEY-KENNEDY, APPELLANT, v. THOMAS KENNEDY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 28, 2002

Citations

742 N.Y.S.2d 573 (N.Y. App. Div. 2002)
294 A.D.2d 573

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