| Matter of Burke v Burke |
| 2007 NY Slip Op 08457 [45 AD3d 591] |
| November 7, 2007 |
| Appellate Division, Second Department |
| In the Matter of Lizette Burke, Also Known as Lizette MaldonadoBurke, Also Known as Lizette Maldonado, Appellant, v Timothy Burke, Respondent.(Proceeding No. 1.) In the Matter of Timothy Burke, Petitioner, v Lizette Maldonado Burke,Respondent. (Proceeding No. 2.) |
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In related child support proceedings pursuant to Family Court Act article 4, the motherappeals from an order of the Family Court, Nassau County (Eisman, J.), dated December 8, 2006,which denied, as untimely, her objections to an order of the same court (Watson, S.M.) datedSeptember 25, 2006, which, after a hearing, inter alia, vacated a prior order of support of thesame court (Watson, S.M.) dated January 27, 2006, directing the father to pay her the sum of$667.22 per month in child support, and instead directed her to pay the father the sum of $463.13per month in child support and the sum of $3,241.91, representing child support arrears.
Ordered that the order is reversed, on the law, without costs or disbursements, the objectionsare reinstated, and the matter is remitted to the Family Court, Nassau County, for a newdetermination based upon consideration of the objections on the merits.
In this case, the Support Magistrate's order was mailed to the appellant on September 25,2006. Pursuant to Family Court Act § 439 (e), the appellant was required to file herobjections to the Support Magistrate's order within 35 days after the mailing of the SupportMagistrate's order to her (see Matter ofHodges v Hodges, 40 AD3d 639 [2007]; Matter of Neu v Davidowitz, 27 AD3d 473, [*2]474 [2006]). Her objections were deemed "filed" when they werereceived and "date-stamped" by the clerk of the Family Court (see CPLR 304, 2102;Matter of Grant v Senkowski, 95 NY2d 605, 609 [2001]; Edith Bolte Kutz Trust v Atlantic CoastConstr., LLC, 32 AD3d 377 [2006]; Peace v Yumin Zhang, 15 AD3d 956, 957-958 [2005]).
The Family Court's computer records of the filing date and date stamp on the copy of theappellant's objections filed with the Family Court state that her objections were filed on October25, 2006, which is within 35 days of the mailing on September 25, 2006. The order appealedfrom improperly denied those objections on the ground that they were untimely filed.Accordingly, the Family Court should have considered the objections on the merits. Spolzino,J.P., Krausman, Goldstein and Dickerson, JJ., concur.