Papers read on this Motion:1. Respondent’s Notice of Motion to Dismiss & Other Relief2. Petitioner’s Notice of Cross Motion3. Respondent’s Reply Affirmation in Further Support of Respondent’s Motion to Dismiss & in Opposition to Petitioner’s Cross Motion for Summary JudgmentDECISION AND ORDER The Respondent has moved herein by Notice of Motion to Dismiss the petition pursuant to Civil Practice Law and Rules (hereinafter “CPLR”) §3211(a) (7). The Petitioner has submitted a cross motion.The Petitioner filed a petition pursuant to Article 4 of the Family Court Act on September 14, 2018, seeking enforcement of the parties’ Judgment of Divorce dated June 17, 2016, which incorporates by reference the parties’ Stipulation of Settlement dated October 20, 2015. Therein, it is alleged that the Respondent owes the sum of $9,000.00 as and for parochial school tuition and activity fees for academic years 2017-2018 and 2018-2019.The Respondent argues that the petition should be dismissed pursuant to CPLR §3211 (a) (7) based upon the fact that the Petitioner was previously awarded a default money judgment in the amount of $19,300.00 towards “college related arrears” which she was not entitled to. That judgment has since been satisfied. In lieu of reimbursement, the Respondent maintains that the $19,300.00 should be applied as a credit towards future claimed expenses.The Petitioner has filed a cross motion wherein it is argued that the Respondent is not entitled to a credit since he failed to file a motion to vacate the default, a motion to reargue, or objections. The Petitioner maintains that she is owed $7,262.50 towards the expenses associated with parochial school. The Respondent has filed a reply reiterating that he is entitled to a credit of $19,300.00 as this court never had subject matter jurisdiction to award college arrears.When considering a motion to dismiss a petition pursuant to Civil Practice Law and Rules (hereinafter, “CPLR”)§3211 (a)(7), the court must accept the allegations in the petition as true, and grant the motion only when, even viewing the allegations as true, the plaintiff [Petitioner] still cannot establish a cause of action, See Parsippany Const. Co., Inc. v. Clark Patterson Associates, P.C., 41 AD3d 805 (2d Dept 2007) (internal citations omitted). Accepting all of the allegations in the petition as true, and affording the Petitioner the benefit of every possible favorable inference, the court must determine whether the facts as alleged fit within any legally cognizable theory. Id.The court finds it necessary to review the relevant procedural history of this case. On September 20, 2016, the Petitioner a petition seeking to enforce educational expenses and extracurricular activities. That petition alleged that the Respondent owed $19,300.00 in arrears towards these expenses. On December 1, 2016, despite having actual notice of the proceedings, the Respondent failed to appear. Accordingly, an inquest was conducted and the Petitioner was granted a money judgment on the amount of $19,300.00 toward college related expenses.Article 18 of the parties’ Stipulation of Settlement states in relevant part, “the parties acknowledge that they have not made any provisions for the payment of either children’s college education…however, upon Asha and/or Ava being accepted for admission to a college or university, the parties shall endeavor to agree upon the allocation of costs for the education of said child. If they are unable to agree, then either party shall have the right to make application to a court of competent jurisdiction for an order directing the other party to make contribution towards the college expenses of said child(ren)…” (See Stipulation of Settlement, page 59, paragraph 1). Inasmuch as the Petitioner was not entitled to a money judgment for “college related expenses” and in the interest of justice, the court finds it appropriate to grant the Respondent a credit in the amount of $19,3000.00 which shall be applied towards any claimed add on expenses that accrued from December 1, 2016 until the credit is absorbed.Based on the foregoing, it is herebyORDERED, that the Respondent’s Motion to dismiss the enforcement petition (docket F-09450-16/18D) is granted,ORDERED that the Petitioner’s cross motion for summary judgment (docket F-09450-16/18D) is denied,ORDERED that docket F-09450-16/18 E, seeking contribution toward college related expenses shall be adjourned for a hearing to April 8, 2019 at 2:00 p.m.ORDERED, that any relief not specifically granted herein is denied; and it is further,This constitutes the Decision and Order of the Court.Dated: February 19, 2019
