| Matter of Simmons v Simmons |
| 2012 NY Slip Op 00794 [91 AD3d 960] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| In the Matter of Tracy S. Simmons, Appellant, v JeffSimmons, Respondent. |
—[*1] Kevin E. Rockitter, P.C., Woodbury, N.Y., for respondent.
In a child support proceeding pursuant to Family Court Act article 4, the mother appeals froman order of the Family Court, Nassau County (Singer, J.), dated February 2, 2011, which deniedher objections to an order of the same court (Kahlon, S.M.), dated October 28, 2010, grantingthat branch of the father's motion which was to dismiss her petition to modify a prior order ofchild support of the same court (Kahlon, S.M.), dated April 19, 2006, as modified by a decisionand order of this Court dated February 19, 2008.
Ordered that the order dated February 2, 2011, is affirmed, with costs.
The Family Court properly granted that branch of the father's motion which was to dismissthe mother's petition to modify a prior order of child support nunc pro tunc on the ground ofnewly discovered evidence (see Family Ct Act § 451 [1]). On a prior appeal, thisCourt, among other things, affirmed an order of the Family Court denying the mother's objectionsto an order which denied her motion to modify the prior support order (see Matter of Simmons v Simmons, 71AD3d 775 [2010]). The issues raised on the prior motion were identical to the issues raisedin the instant petition. The mother did not allege a change in circumstances as of the date of theprior determination, and she had a full and fair opportunity to litigate the issue. Accordingly, themother was collaterally estopped from again raising the issue of "newly discovered evidence"before the Family Court (see Buechel v Bain, 97 NY2d 295, 303-304 [2001], certdenied 535 US 1096 [2002]; Matterof Csorba v Renzi, 77 AD3d 660 [2010]; Westchester County Correction Officers Benevolent Assn., Inc. v County ofWestchester, 65 AD3d 1226, 1227 [2009]). Balkin, J.P., Leventhal, Belen and Roman,JJ., concur.