The following electronically filed documents read on this Order to Show Cause by plaintiff seeking an Order scheduling a hearing as to how plaintiff’s portion of the settlement funds should be disbursed between the lien holder: New York City Office of Child Support Services), and the plaintiff; and cross-motion by non-party Office of Child Support Services seeking an Order of the Court holding that the Office of Child Support Services Judgment and lien has priority over the plaintiff’s alleged hardship claim and the release of the net settlement proceeds to OCSS:Papers NumberedOrder to Show Cause-Affirmation-Exhibits EF 9-14, 25Notice of Cross Motion-Affirmation in Support-Memorandum in Support Exhibits EF 15-24 On November 16, 2010, under docket number F-16386-10 Support Magistrate Michael Fondacaro of the Queens Family Court issued a child support order obligating the plaintiff to pay to the custodial parent through Office of Child Support Services (herein OCSS) the sum of $150.00 bi-weekly for the support of his thirteen year old daughter.1 Currently, the plaintiff owes $26, 572.04 in child support arrears.On September 28, 2012 plaintiff was involved in a motor-vehicle accident which occurred on Jamaica Avenue at its intersection with 106th Street in Queens County, New York. On November 20, 2012 OCSS sent a Notice of Lien to Geico Insurance Company to obtain the net proceeds of any settlement from the aforementioned accident in which plaintiff was involved. On March 31, 2014 plaintiff filed the summons and complaint in the instant action.On October 9, 2015, OCSS made an administrative decision to issue an income withholding order to the plaintiff’s attorney.Plaintiff’s counsel affirms that the instant action settled for $21, 500.00. After attorneys’ costs and fees, plaintiff’s portion of the settlement was $13, 964.70. A stipulation of discontinuance was filed January 14, 2016.Plaintiff’s Order to Show CauseIn plaintiff’s Order to Show Cause, he states that he has a job where he earns $560.00 per week, however he is homeless. Plaintiff requests a hearing directing how the portion of the funds of his settlement be distributed.In opposition to the Order to Show Cause, non-party OCSS argues that for the court to award settlement proceeds to the plaintiff, the Court must review the administrative decisions of OCSS and that plaintiff needs to have exhausted all administrative remedies prior to seeking judicial relief. OCSS contends that plaintiff has failed to exhaust all of his administrative remedies.Additionally, in opposition, OCSS argues that plaintiff could have appealed his administrative decision to Family Court, not the Supreme Court.Here, plaintiff has not exhausted his administrative remedies, and this Court would not be proper venue for a hearing requested, (See Watergate II Apartments v. Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]).Therefore, plaintiff’s Order to Show Cause shall be denied.Non-Party OCSS’s Cross-MotionOCSS states that it has priority over plaintiff’s hardship claim.According to CPLR section 5241 (h) which pertains to child support, that “[a] levy pursuant to this section or an income deduction order pursuant to section 5242 of this chapter shall take priority over any other assignment, levy or process.”Here, OCSS’s claim for the settlement proceeds by statute, takes precedence over plaintiff’s claims, and there is no statutory basis for this Court to grant priority to the plaintiff over OCSS.Therefore, OCSS’ lien has priority over plaintiff’s hardship claim.Additionally in it’s cross-motion, OCSS as judgment creditor and lien holder applies to this Court for a turn over order directing the plaintiff’s attorney to release the net settlement proceeds to OCSS for disbursement to the custodial parent of the plaintiff’s thirteen year old daughter.CPLR section 5225 (b) permits the turnover of funds held by a third party in which the debtor has an interest. While, section 5225(b) requires that a turnover proceeding be brought by special proceeding with notice to the debtor by registered or certified mail, CPLR section 103 (c) permits the conversion of a cross motion to a special proceeding, so long as all parties are under the jurisdiction of the Court.Here, all parties are under the jurisdiction of the Court. Accordingly, the cross-motion is converted to a special proceeding.Therefore, plaintiff’s entire portion of his settlement totaling $13, 964.70 shall be turned over to OCSS.No opposition to the cross-motion has been filed.Accordingly, plaintiff’s Order to Show Cause is denied; and non-party Office of Child Support Services cross-motion is granted and it is further,ORDERED, that non-party Office of Child Support Services’ lien has priority over hardship claims made by the plaintiff Wilfredo Gonzalez; and it is furtherORDERED, that plaintiff Wilfredo Gonzalez’s attorney shall turn over the net settlement proceeds totaling $13, 964.70 to non-party movant Office of Child Support Services within 30 days of service of a copy of this Order with Notice of Entry.Dated: May 1, 2019Long Island City, NY
