| Matter of Gale v Lotito |
| 2008 NY Slip Op 03457 [50 AD3d 903] |
| April 15, 2008 |
| Appellate Division, Second Department |
| In the Matter of Nicole Gale, Respondent, v John Lotito III,Appellant. |
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In a child support proceeding pursuant to Family Court Act article 4, the father appeals froman order of the Family Court, Richmond County (DiDomenico, J.), dated April 30, 2007, whichdenied his objection to an order of the same court (Weir-Reeves, S.M.), dated March 9, 2007,denying his motion, in effect, for leave to renew the petition for support.
Ordered that the order dated April 30, 2007 is affirmed, without costs or disbursements.
The mother and the father, who were never married, share legal custody of their child. Themother, who is the primary caretaker of the child, petitioned for an order of support, and ahearing was held over several days during which the father was directed by the court three timesto submit certain evidence regarding his financial status. The father failed to do so, and theSupport Magistrate entered a support order based solely upon the child's needs, without regard tothe father's financial circumstances, pursuant to Family Court Act § 413 (1) (k), whichprovides: "[w]hen a party has defaulted and/or the court is otherwise presented with insufficientevidence to determine gross income, the court shall order child support based upon the needs orstandard of living of the child, whichever is greater." The father subsequently moved, in effect,for leave to renew the petition for support, submitting new documentary evidence regarding hisfinancial circumstances. The motion was denied, as was the father's subsequent objection to theorder denying his motion. We affirm.
"A motion for leave to renew must be supported by new facts not offered on the prior motionthat would change the prior determination, and the motion shall also contain a reasonablejustification for the failure to present such facts on the prior motion" (Williams v Nassau County [*2]Med. Ctr., 37 AD3d 594 [2007]; see CPLR 2221[e] [2], [3]; Hart v City of NewYork, 5 AD3d 438 [2004]). Here, the Support Magistrate properly denied the father'smotion, in effect, for leave to renew since the motion failed to contain a reasonable justificationas to why the additional facts he offered upon seeking leave to renew were not presented duringthe underlying support proceeding (see CPLR 2221 [e] [2], [3]; Clemente v Carl Bongiorno & Sons,Inc., 39 AD3d 688, 689 [2007]; Hart v City of New York, 5 AD3d 438 [2004]; cf. Walsh v Schmigelski, 35 AD3d849 [2006]). Consequently, the Family Court properly denied the father's objection to theorder of the Support Magistrate denying his motion, in effect, for leave to renew. Fisher, J.P.,Miller, Carni and Dickerson, JJ., concur.