JUDGING A TV JUDGE

Former TV judge Joe Brown goes to jail for contempt:

http://www.abajournal.com/news/article/Former_TV_judge_goes_to_jail_contempt_term_went_from_1_day_to_5_days?utm_source=internal&utm_medium=navigation&utm_campaign=navbar

THE BAR MITZVAH GIFT CASE

Many newspapers have been running the story of the 20 year old son who sued his mother for return of a Bar Mitzvah gift (it appears that the case may be related to a matrimonial between the parents).

In any event, here is a link to the decision:

http://www.nycourts.gov/reporter/3dseries/2015/2015_25291.htm

AND A SUPERSTORM SANDY SCAM

From Newsday:

"The state is investigating a company called NY Rising Consultants that earlier this month emailed superstorm Sandy victims offering to help with applications, change orders and appeal cases -- for fees ranging from $30 into the thousands."

See http://www.newsday.com/long-island/firm-probed-after-soliciting-sandy-applicants-for-ny-rising-aid-1.10778635

NEXT SENIOR CLINIC AT NASSAU COUNTY BAR ASSOCIATION

The next Senior Clinic is coming up on Wednesday, September 16 at 9:30-11am. This is a free clinic for senior citizens of Nassau County.

To register contact:

Demi Tsiopelas
Lawyer Services Coordinator
Nassau County Bar Association
15th & West Streets
Mineola, NY 11501
t. 516.747-4070 ext. 210

POSSIBLE MORTGAGE MODIFICATION SCAM

I have been advised as follows:

"Apparently a servicer called ClearSpring has offered a modification that would require the borrower to sign a deed in lieu of foreclosure, which the bank would then file in the event of one missed payment."

Of course, all scams should be reported to the NYS AG.

DIVORCE ACTIONS - SETTLEMENT

This link is to an article from the American Bar Association's GP SOLO and is entitled:

"Preparing a Client for Settlement"

See http://www.americanbar.org/publications/gp_solo/2015/july-august/family_law_preparing_client_settlement.html

SERVICE BY FACEBOOK (CONTINUED)

In Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (Sup. Ct. N.Y. Co. 2015), the issue was centered around the commencement of a divorce action and the court discussed the Facebook concerns in detail (the following is taken from NYS Law Reporting Bureau):

"Having demonstrated a sound basis for seeking alternative service pursuant to CPLR 308 (5), plaintiff must now show that the method she proposes is one that the court can endorse as being reasonably calculated to apprise defendant that he is being sued for divorce. This hurdle poses a number of challenges. First, there are only a handful of reported decisions,{**48 Misc 3d at 313} mostly from federal district courts, that have addressed the issue of service of process being accomplished through social media, with there being an almost even split between those decisions approving it and those rejecting it (compare Federal Trade Commn. v PCCare247 Inc., 2013 WL 841037, 2013 US Dist LEXIS 31969 [SD NY, Mar. 7, 2013, No. 12 Civ 7189 (PAE)] [allowing service of process in part by social media], WhosHere, Inc. v Orun, 2014 WL 670817, 2014 US Dist LEXIS 22084 [ED Va, Feb. 20, 2014, No. 1:13-cv-00526 (AJT/TRJ)] [same], and Matter of Noel B. v Anna Maria A., NYLJ 1202670317766, 2014 NY Misc LEXIS 4708 [Fam Ct, Richmond County 2014] [same], with Fortunato v Chase Bank USA, N.A., 2012 WL 2086950, 2012 US Dist LEXIS 80594 [SD NY, June 7, 2012, No. 11 Civ 6608 (JFK)] [denying service by Facebook], Joe Hand Promotions, Inc. v Shepard, 2013 WL 4058745, 2013 US Dist LEXIS 113578 [ED Mo, Aug. 12, 2013, No. 4:12cv1728 (SNLJ)] [same], and In re Adoption of K.P.M.A., 341 P3d 38 [Okla 2014] [same]). Second, as will be further discussed, the cases permitting such service have done so only on condition that the papers commencing the lawsuit be served on the defendant by another method as well. Thus, in seeking permission to effectuate service of the divorce summons by simply sending it to defendant through a private Facebook message, plaintiff is asking the court, already beyond the safe harbor of statutory prescription, to venture into uncharted waters without the guiding light of clear judicial precedent.

Consideration must also be given to the fact that the way plaintiff proposes to provide defendant with notice of the divorce represents a radical departure from the traditional notion of what constitutes service of process. Even decisions from as recently as 2012 and 2013 have referred to the use of Facebook messaging for the purpose of commencing a lawsuit as being a "novel concept" (PCCare247 Inc., 2013 WL 841037, *5, 2013 US Dist LEXIS 31969, *16 [permitting it as a supplemental method of service]) and "unorthodox to say the least" (Fortunato, 2012 WL 2086950, *2, 2012 US Dist LEXIS 80594, *6 [rejecting it as a means of service]).

That a concept is new to the law is something that may very well require a court to exercise a high degree of scrutiny and independent legal analysis when judicial approval is sought. But a concept should not be rejected simply because it is novel or nontraditional. This is especially so where technology and the law intersect. In this age of technological enlightenment,{**48 Misc 3d at 314} what is for the moment unorthodox and unusual stands a good chance of sooner or later being accepted and standard, or even outdated and passé. And because legislatures have often been slow to react to these changes, it has fallen on courts to insure that our legal procedures keep pace with current technology (see New England Merchants Natl. Bank v Iran Power Generation & Transmission Co., 495 F Supp 73, 81 [SD NY 1980] ["Courts . . . cannot be blind to changes and advances in technology"]). As noted by the United States Court of Appeals for the Ninth Circuit in Rio Props., Inc. v Rio Intl. Interlink (284 F3d 1007, 1017 [9th Cir 2002]), one of the earliest cases authorizing service of process by email, the "broad constitutional principle" upon which judicially-devised alternative service is based "unshackles . . . courts from anachronistic methods of service and permits them entry into the technological renaissance."

In the final analysis, constitutional principles, not the lack of judicial precedent or the novelty of Facebook service, will be ultimately determinative here. The central question is whether the method by which plaintiff seeks to serve defendant comports with the fundamentals of due process by being reasonably calculated to provide defendant with notice of the divorce. Or more simply posed: If the summons for divorce is sent to what plaintiff represents to be defendant's Facebook account, is there a good chance he will receive it?

In order for the question to be answered in the affirmative, plaintiff must address a number of this court's concerns. The first is that the Facebook account that plaintiff believes is defendant's might not actually belong to him. As is well known, the Facebook profile somebody views online may very well belong to someone other than whom the profile purports it to be. This has led courts to observe that "anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Facebook page belongs to the defendant to be served" (PCCare247 Inc., 2013 WL 841037, *5, 2013 US Dist LEXIS 31969, *15 [internal quotation marks omitted], quoting Fortunato, 2012 WL 2086950, *2, 2012 US Dist LEXIS 80594, *7-8). As a result, this court required plaintiff to submit a supplemental affidavit to verify that the Facebook account she references is indeed that of the defendant. Plaintiff submitted such an affidavit, to which she annexed copies of the exchanges that took place between her and defendant when she contacted him through his{**48 Misc 3d at 315} Facebook page, and in which she identified defendant as the subject of the photographs that appear on that page. While it is true that plaintiff's statements are not absolute proof that the account belongs to defendant—it being conceivable that if plaintiff herself or someone at her behest created defendant's page, she could fabricate exchanges and post photographs—plaintiff has nevertheless persuaded the court that the account in question does indeed belong to defendant.

The second concern is that if defendant is not diligent in logging on to his Facebook account, he runs the risk of not seeing the summons until the time to respond has passed. Here too, plaintiff's affidavit has successfully addressed the issue. Her exchanges with defendant via Facebook show that he regularly logs on to his account. In addition, because plaintiff has a mobile phone number for defendant, both she and her attorney can speak to him or leave a voicemail message, or else send him a text message alerting him that a divorce action has been commenced and that he should check his account (WhosHere, Inc., 2014 WL 670817, *4, 2014 US Dist LEXIS 22084, *13 ["(C)ourts have taken into consideration whether defendant already possessed either knowledge of suit or that he may be the subject to a suit"]).

The third concern is whether a backup means of service is required under the circumstances. Although, as was discussed, other court decisions have endorsed using Facebook as a means of service, they have done so only where Facebook was but one of the methods employed, not the only method. As the court stated in PCCare247 Inc. (2013 WL 841037, *5, 2013 US Dist LEXIS 31969, *15), "[t]o be sure, if the [plaintiff] were proposing to serve defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether that service comports with due process." In that case, and as well as in WhosHere, Inc., the other federal court decision authorizing Facebook service, the court stressed that it was allowing the use of a social media site only in conjunction with notice being sent to the defendants by email. In Noel B. (NYLJ 1202670317766, *2, 2014 NY Misc LEXIS 4708, *4), the only decision from a state court permitting service via Facebook, the petitioner was required to mail a copy of the child support summons and petition to the respondent's "previously used last known address."

Here, plaintiff does not have an email address for defendant and has no way of finding one. Nor does she have a street address{**48 Misc 3d at 316} for defendant that could constitute a viable "last known address"; defendant's last known address dates back at least four years and the post office confirmed that defendant no longer resides there and he has left no forwarding address. Thus, plaintiff has a compelling reason to make Facebook the sole, rather than the supplemental, means of service, with the court satisfied that it is a method reasonably calculated to give defendant notice that he is being sued for divorce.

Before granting plaintiff leave to serve defendant via Facebook, a method of alternative service judicially-devised pursuant to CPLR 308 (5), there is one remaining question that should be addressed: Why use Facebook as either the sole or the supplemental means of service in the first place when there is a statutorily prescribed method of service readily available? That method is service by publication, something that is specifically authorized under CPLR 315. After all, publication is not only expressly sanctioned by the CPLR, but it is a means of service of process that has been used in New York in one form or another since colonial times. Even today, it is probably the method of service most often permitted in divorce actions when the defendant cannot be served by other means.

The problem, however, with publication service is that it is almost guaranteed not to provide a defendant with notice of the action for divorce, or any other lawsuit for that matter (see Snyder v Alternate Energy Inc., 19 Misc 3d 954 [Civ Ct, NY County 2008]; Adam Liptak, How to Tell Someone She's Being Sued, Without Really Telling Her, NY Times, Nov. 19, 2007, http://www.nytimes.com/2007/11/19/us/19bar.html). In divorce cases brought in New York County, plaintiffs are often granted permission to publish the summons in such newspapers as the New York Law Journal or the Irish Echo. If that were to be done here, the chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none. The dangers of allowing somebody to be divorced and not know it are simply too great to allow notice to be given by publication, a form of service that, while neither novel nor unorthodox, is essentially statutorily authorized non-service. This is especially so when, as here, there is a readily available means of service that stands a very good chance of letting defendant know that he is being sued.

Moreover, the court will not require publication in any newspaper even as a backup method to Facebook. Although a{**48 Misc 3d at 317} more widely circulated newspaper, like the New York Post or the Daily News, might reach more readers, the cost, which approaches $1,000 for running the notice for a week, is substantial, and the chances of it being seen by defendant, buried in an obscure section of the paper and printed in small type, are still infinitesimal.

Under the circumstance presented here, service by Facebook, albeit novel and nontraditional, is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.

In light of the foregoing, plaintiff is granted permission to serve defendant with the divorce summons using a private message through Facebook. Specifically, because litigants are prohibited from serving other litigants, plaintiff's attorney shall log into plaintiff's Facebook account and message the defendant by first identifying himself, and then either including a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff's attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.

Footnotes

Footnote 1:The last time the legislature amended a provision of the law dealing with service of process on individuals was in 1994, back at the dawn of the Internet age and before email was widely utilized.

Footnote 2:The "many" includes the 157,000,000 people in the United States who, according to Facebook's 2014 fourth quarter shareholder report, check their Facebook accounts each day. It does not, by and large, include the members of the New York State Judiciary, who have been advised that they should be wary of using social network sites (see Advisory Comm on Jud Ethics Op 08-176 [2009]; Advisory Comm on Jud Ethics Op 13-39 [2013]; see also Richard Raysman & Peter Brown, Judicial and Attorney Misuse of Social Media Can End Careers, NYLJ, Mar. 10, 2015 at 5, col 1). "

SERVICE BY FACEBOOK

Two recent cases come to mind:

1. Noel B. v. Anna Maria A., Docket No. F-00787-13/14B (N.Y. Fam. Ct. Sept. 12, 2014).

2. Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (Sup. Ct. N.Y. Co. 2015).

Both cases deal with the issue of substituted service under CPLR 308 (5). 

In Noel B, the Petitioner filed an action seeking to modify the order of child support based on the alleged emancipation of the sole subject child. The court noted:

"The court finds that service under CPLR § 308 (1,2 and 4) are impracticable. The Petitioner has made diligent efforts to locate the Respondent, but has been unable to obtain an address where service can be made.

However, despite the absence of a physical address, the Petitioner does have a means by which he can contact the Respondent and provide her with notice of the instant proceedings, namely the existence of an active social media account.

While this court is not aware of any published decision wherein a New York state court has authorized service of process by means of social media, other jurisdictions have allowed such service. See Whoshere, Inc. v. Orun, 2014 WL 670817 (E.D. Va.), Federal Trade Commission v. PCCare247 Inc., 2013 WL 841037 (S.D.N.Y.). The court notes that in both those matters service via Facebook was directed to be made in connection with other means of service.

Pursuant to CPLR § 308(5) the court authorizes substituted service by the following method: the Petitioner is to send a digital copy of the summons and petition to the Respondent via the Facebook account, and follow up with a mailing of those same documents to the previously used last known address. The Respondent can receive communications via social media, whereas her actual physical whereabouts are uncertain. The method detailed here by the court provides the best chance of the Respondent getting actual notice of these proceedings."

IT'S NOT THE LAW YET

For an update on the new maintenance reform legislation: Governor Cuomo has not yet signed this new legislative bill. 

FROM SUMMER ISSUE OF NEW YORK STATE BAR ASSOCIATION PRO BONO NEWS

WHEN A PARENT MAKES UNFOUNDED ALLEGATIONS AGAINST THE OTHER

See Matter of Patrick EE. v Brenda DD. 2015 NY Slip Op 04891 Decided on June 11, 2015 Appellate Division, Third Department - unfounded allegations coupled with mental health issues and other behaviors resulted in a suspension of supervision.

MAKING AN HONEST APPLICATION FOR LAW SCHOOL

In a blog this March 4, I noted that I was a graduate of St. John's Law School in Queens, NY and that The Nassau County Bar Association Lawyer Assistance Program was sponsoring Wellness Seminars at the law school that day (I was one of the speakers.)

Matter of Powers v St. John's Univ. Sch. of Law 2015 NY Slip Op 02799 Decided on April 2, 2015 Court of Appeals - summary from Justia

"After David Powers had completed three semesters as a part-time law school student at St. John’s University School of Law, the law school discovered that Powers had made material misrepresentations and omissions in his law school application regarding his criminal history. St. John’s subsequently rescinded Powers’s admission based on the application’s material omissions and misrepresentations. Powers subsequently brought this N.Y. C.P.L.R. 28 proceeding against the law school. The Appellate Division concluded that St. John’s determination to rescind Petitioner’s admission was not arbitrary and capricious and did not warrant judicial intervention. The Court of Appeals affirmed, holding that the law school’s penalty of rescission for Powers’s failure to truthfully and fully disclose his record was not excessive."

The facts of the case from the opinion:

"In November 2005, Powers submitted an application to St. John's University School of Law to become a part-time law student. The application included the following question:

"Have you ever been charged with, pleaded guilty to, or been found guilty of any crime, offense, or violation (other than a minor traffic violation), or is any such action pending or expected to be brought against you?
I
f yes, please explain in a supplementary statement or electronic attachment the relevant facts, including the nature of the offense, the dates and courts involved, and the penalty imposed, if any. Note: Although a conviction may have been sealed or expunged from the record by an order of the court, it nevertheless should be disclosed in answer to this question."

Powers answered the question "Yes" and submitted a three-page "Background Disclosure" in which he stated, among other things, that he was "not proud to admit that [he had] used drugs," that in July of 1999 "[he] remembered being pulled over by the police shortly after a drug deal," and that "[a]fter about a year, the case proceeded and [he] accepted a plea bargain to attend an inpatient rehabilitation program and complete probation." He stated that he was convicted of "third degree possession of a controlled dangerous substance." Powers did not, as required by the application, explain all of the relevant facts or the "nature of the offenses" for which he was charged. He had in fact been charged in the State of New Jersey with distribution of LSD, second degree; possession of LSD with intent to distribute, second degree; possession of drug paraphernalia; possession of MDMA (colloquially known as Ecstasy), third degree; possession of MDMA with intent to distribute; possession of LSD, third degree, and possession of a controlled dangerous substance in a motor vehicle.

Further, Powers did not accurately represent his convictions. He stated that he had been convicted of third degree possession of a controlled dangerous substance, while in fact, he had pleaded guilty to second degree distribution of LSD, and second degree possession of LSD with intent to distribute. The plea included an agreement that if defendant entered and successfully completed an inpatient program of at least nine months including any aftercare treatment, the State would consent to the defendant withdrawing his plea and entering a guilty plea to possession with intent to distribute in the third degree, as amended, where the recommended sentence would be probation and credit for time served in the inpatient program. The record shows that defendant did in fact withdraw his plea and enter a guilty plea to possession with intent to distribute in the third degree. That is not a guilty plea to third degree possession of a [*3]controlled substance, as Powers had reported in his application.[FN1]

The omissions and misrepresentations first came to the attention of the law school after Powers had completed three semesters as a part-time student, and while he was on a leave of absence and working in Hong Kong. In September 2008, he wrote to the Senior Assistant Dean for Students, Kathleen Sullivan, stating that he intended to petition the Committee on Character and Fitness for an advance ruling with respect to his past conduct and his fitness to be admitted to the New York bar, and he requested a letter of support from the law school. Powers subsequently sent Dean Sullivan a draft of his letter to the Committee on Character and Fitness, which stated, among other things, that he had used drugs habitually from age 16 to 21, that he "sometimes would sell drugs to others" and that in July 2001, he had been arrested for "distribution of LSD to an undercover officer and possession of Ecstasy." The Dean responded to Powers that the information he had provided to the Committee on Character and Fitness was not included in his application to the law school, and that accordingly, the law school would not be providing him with a letter of support.

In November 2009, Powers applied for an extension of his leave of absence to Spring 2011, which was granted. In July 2010, Powers requested from the law school a letter of good standing so that he could apply for a semester abroad in Tokyo. At that point, Dean Sullivan sought guidance from other senior administrators, including then Assistant Dean for Students-Designate Larry Cunningham. It was decided that the law school would not provide the letter, and that, because it was apparent that Powers intended to pursue his legal career, the law school would start the process that it uses with respect to misrepresentations and omissions on applications.

The school advised Powers that in order to continue at the school, he must seek to amend his application, including a full accounting of the criminal activity at issue and an explanation of why he had not disclosed it in his initial application. Powers was informed that upon receipt of the materials, the law school would determine whether the non-disclosure and underlying criminal activity warranted disciplinary action, which could include rescission of his admission to the school.

Powers responded in June 2010 by providing, among other things, a copy of his presentence report which showed the charges against him and his convictions pursuant to his plea. He had not included that report with his original application. He stated that he had consulted counsel about what he should disclose on his law school application, and that he did [*4]not see any need to amend the application because he considered the statement in his application to be adequate. He wrote that he would be in New York in July and available for a meeting.

In July 2010, Powers met with Dean Sullivan, Associate Academic Dean and Professor of Law Valentine Turano, Vice Dean Emeritus Andrew Simons and Dean Cunningham. He was given an opportunity to explain his actions and was told he could submit a written request to amend his law school application. Powers wrote to Dean Cunningham and stated, among other things, that he had looked over the statement that accompanied his application "and would like to reaffirm that there is nothing in the statement which is factually incorrect or needs to be amended. The statement addresses relevant facts, the nature of the offense, dates and the penalty imposed." He also wrote that the presentence report clearly showed the original charges as well as the final charges and the charges that the State consented to upon his completion of a rehabilitation program. He noted that he had completed the program as required and that the State had consented to a new guilty plea of possession with intent to distribute in the third degree. He explained that although he was arrested for distribution, that was not something he did with regularity.

In September 2010, the law school notified Powers that his application contained material omissions and misrepresentations involving criminal charges brought against him, that he had subsequently advised the school that he had been charged with distribution of LSD and Ecstasy, and that the law school was rescinding his admission."

CHILD CUSTODY - STARS ARE JUST LIKE US

They lose in litigation...like custody cases.

For a full text of the statement issued by "Gossip Girl" actress Kelly Rutherford, see http://6abc.com/entertainment/gossip-girl-actress-kelly-rutherford-issues-blistering-statement-after-losing-custody-battle/924279/

SUCCESSION RIGHTS IN LEASES

For rent stabilized and rent controlled apartments throughout New York State, a "family member" of the tenant may have the right to a rent stabilized renewal lease or protection from eviction in an apartment under rent control when the tenant dies or permanently leaves the apartment. The definition of "family member" is broad and various factors are to be considered.

For more information, see http://www.nyshcr.org/Rent/factsheets/orafac30.htm

ON COLLECTION ATTEMPTS, ENVELOPES AND FDCPA CLAIMS

"Over the past two weeks, two separate federal district courts in New York held that having a consumer’s account number visible on the outside of an envelope containing letters from debt collection agencies does not, by itself, violate the FDCPA."

For complete story, see http://www.consumerfinancialserviceslawmonitor.com/2015/08/district-courts-in-new-york-reject-fdcpa-claims-based-on-account-numbers-appearing-on-envelope

LAW AT THE MOVIES

 

From the American Bar Association Journal:

 

"This year marks the 100th anniversary of the ABA Journal, so we’ve been exploring the legal and cultural history of the past century. For our annual pop culture issue, we looked for the best legal movies released in the decades since our launch in 1915. What follows is our list of the most important and influential legal movies for each decade, along with comments from some of the jurors who helped us with our picks."

 

See http://www.abajournal.com/magazine/article/100_years_of_law_at_the_movies/

 

A VIEW FROM THE LANDLORD'S SIDE

For many years, I have been aware of TenantNet (http://www.tenant.net) which has been an online resource center for tenants, focusing on New York City and New York State, but information from other areas is also available.

On the Landlords' side, I discovered this site:

"The Landlord Protection Agency is devoted to the protection of Landlords and the promotion of wealth. Welcome to the art of landlord protection through safe, effective, profitable property management!....We provide you with the advantage of our unique specialized rental forms and tools to protect you from various dangers in the world of Landlords and Tenants."

See https://www.thelpa.com/

HEALTH CARE PROXY FORMS

Health Care Proxy Forms are also known as advance health care directives. These forms enable you to appoint a trusted family member or friend to make health care decisions for you if you lose the ability to make decisions yourself. These forms are free and provided as a service to all New Yorkers.

See http://www.health.ny.gov/professionals/patients/health_care_proxy/index.htm

WHAT HAPPENS TO MY DIGITAL ASSETS WHEN I DIE

A good question.  Many states are considering adopting The Uniform Fiduciary Access to Digital Assets Act.

See http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets

MORTGAGE SCAM HELP

From the NYS AG website:

"Thousands of New Yorkers are scammed by companies who take advantage of homeowners in distress. Don't let it happen to you. The New York State Attorney General created AGScamHelp.com to assist homeowners in finding free, qualified mortgage assistance relief services from a network of trusted partners operating across the state under the New York Attorney General Homeowner Protection Program (HOPP). We are dedicated to alerting homeowners like you about foreclosure rescue scams so you can avoid scammers and get legitimate help."

See https://agscamhelp.com/en

SEEKING A DOWNWARD MODIFICATION OF CHILD SUPPORT

Matter of Rolko v Intini 2015 NY Slip Op 03848 Decided on May 6, 2015 Appellate Division, Second Department:

"A "party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of Baumgardner v Baumgardner, 126 AD3d 895, 896-897; see Matter of Rubenstein v Rubenstein, 114 AD3d 798, 798; Matter of Suyunov v Tarashchansky, 98 AD3d 744, 745). "A parent's loss of employment may constitute a substantial change in circumstances" (Matter of Rubenstein v Rubenstein, 114 AD3d at 798; see Matter of Suyunov v Tarashchansky, 98 AD3d at 745; Matter of Ceballos v Castillo, 85 AD3d 1161, 1162). However, "[t]he proper amount of support to be paid . . . is determined not by the parent's current economic situation, but by the parent's assets and earning capacity" (Matter of Muselevichus v Muselevichus, 40 AD3d 997, 998-999; see Matter of Baumgardner v Baumgardner, 126 AD3d at 896-897; Ashmore v Ashmore, 114 AD3d 712, 713; Matter of Solis v Marmolejos, 50 AD3d 691, 692). Thus, a parent seeking downward modification of a child support obligation must submit competent proof that "the termination occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity" (Matter of Riendeau v Riendeau, 95 AD3d 891, 892; see Matter of Rubenstein v Rubenstein, 114 AD3d at 798; Ashmore v Ashmore, 114 AD3d at 713; Matter of Suyunov v Tarashchansky, 98 AD3d at 745; Matter of Ceballos v Castillo, 85 AD3d at 1162). "On appeal, deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to evaluate the credibility of the witnesses" (Matter of Rubenstein v Rubenstein, 114 AD3d at 798; see Matter of Gansky v Gansky, 103 AD3d 894, 985; Matter of Suyunov v Tarashchansky, 98 AD3d at 745).

Here, the record supports the Support Magistrate's determination that the father failed to demonstrate a substantial change in circumstances warranting a downward modification of his child support obligation. The father failed to adduce sufficient evidence to satisfy his burden of establishing that he diligently sought employment commensurate with his qualifications and experience (see Matter of Riendeau v Riendeau, 95 AD3d at 892; Peterson v Peterson, 75 AD3d 512, 513; Matter of Gedacht v Agulnek, 67 AD3d 1013, 1013). Thus, the Family Court properly denied the father's objections to the Support Magistrate's finding that he was not entitled to a downward modification of his child support obligation.

However, under the circumstances of this case, the instant petition should not have been dismissed "with prejudice" to the filing of any subsequent petition for modification of child support. The Family Court has continuing jurisdiction to modify a prior order of child support upon a proper showing of statutorily enumerated circumstances (see Family Ct Act § 451[2][a], [b][i], [ii]). Therefore, the Family Court should have granted the father's objection to the words "with prejudice" in the order dated April 30, 2014, and thereupon substituted the words "without prejudice" for the words "with prejudice" in that order (see Matter of Edwards v Edwards, 111 AD3d 630, 632; cf. Matter of French v Gordon, 103 AD3d 722, 723)."