Mistake of Fact

Mistakes and the "Mistake of Fact" Petition



Submitted by Ronald A. Phillips, Esq.

Co-Chair, Family Law Committee

Fellow, American Academy of Matrimonial Lawyers

Mistakes and the "Mistake of Fact" Petition

One of the most effective and simple remedies available to enforce a support order is the wage garnishment. It can be served by the support collection unit as well as the attorney for the spouse receiving child support or maintenance. It is available for all support orders whether made in the Supreme Court or the Family Court. However, whether you've filed the wage garnishment or received it, you must frequently deal with a "Mistake of Fact" petition; this is a claim that some information as to the monies due or the order contained in the wage

garnishment is incorrect.

CPLR § 5241 (a) 8. defines a "mistake of fact" as:

8. "Mistake of fact" means an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.

There is a substantial procedural difference to be considered when filing a "mistake of fact" petition in the Supreme Court as compared to the Family Court. Thanks to the procedure in the Family Court, you don't even realize that it is a new proceedings. In the Supreme Court, you must recognize that fact or risk having the petition denied based upon a "technicality".

The method utilized to raise the issue is set forth in CPLR § 5241 (e), "Determination of mistake of fact". The part which defines the method of raising a "mistake of fact" reads as follows:

If application is made to the family court, such application shall be by petition on notice to the creditor and it shall be heard and determined in accordance with the provisions of section four hundred thirty-nine of the family court act, and a determination thereof shall be made, and the debtor notified thereof within forty-five days of the application. If application is made to the supreme court such application shall be by petition on notice to the creditor and, it shall be heard and determined in accordance with the provisions of article four of the civil practice law and rules, and a determination thereof shall be made, and the debtor notified thereof within forty-five days of the application.

The long and the short of it is that you must start a new proceeding. During the last year, I have seen several "mistake of fact" issues raised by Order to Show Cause and Affidavit in the matrimonial proceedings. This is a technical error that cannot be ignored, corrected, or cured; at least most of the time. If the facts call for an "equity oriented result" (fact based result) as compared to a "law oriented" result, the courts seem to reach out and find a way to do "justice" (see ZUCKERMAN V ZUCKERMAN, 154 A.D.2D 666, 546 NYS2d 666; REYNDERS V REYNDERS, 155 A.D.2D 987, 548 NYS2d 130; MALIN v MALIN, 172 AD2d 723, 569 NYS2d 745] ). However, in the usual case, the courts strictly construe the law. Since a "mistake of fact" proceedings is a new matter, with new pleadings (petition, answer, reply to counterclaim, and any other pleadings permitted by the court [CPLR § 402]), it is commenced by filing the petition, purchasing a new index number, and making personal service upon the payee spouse, the respondent. While the provisions of the CPLR "shall be liberally construed to secure the just, speedy and inexpensive determination of every civil judicial proceeding", (CPLR § 104), the filing requirement with the requirement for a new index number and the service requirement may not be ignored under the guise of "liberal construction". However, there is always the exception to the absolute; see Zuckerman, supra., a case involving a failure to make personal service with respect to a Family Court "Mistake of Fact" petition.

While in a special proceeding (CPLR Article 4), which is a new proceeding between the parties, you should get a hearing, most times a "mistake of fact" petition is determined summarily. Because of the limited nature of what may be considered a "mistake of fact", few such applications ever require a hearing. However, imagine your client's reaction if he/she claims a "mistake of fact", and when you file the petition all issues are not covered in your petition (or included in an affidavit attached to the petition) resulting in an adverse summary disposition. Your client will not be satisfied with your claim that you "complied with the law" (CPLR § 405, "Correction in Papers") and that you were ready to cure any alleged defect at the hearing. You should present any documentary evidence and other evidentiary matters in acceptable form as part of the petition. The courts are overworked and looking for a way to summarily decide these applications and decisions are frequently made under CPLR § 409(b), "Summary Determination". In MATTER OF STOVER v GOEGEL, 213 AD2d 554, the court stated:

"A challenge to the issuance of an income execution is a special proceeding that, absent an issue of fact, may be decided summarily (see, CPLR 5241 [e]; Matter of Bahar v Schwartzreich, 204 AD2d 441; Matter of Jones v Marcy, 135 AD2d 887). The burden of proof is on the petitioner (see, Keegan v Keegan, 204 AD2d 606; Blackman v Blackman, 131 AD2d 801; Matter of Jones v Marcy, supra). Here, the only proof offered by the petitioner was the hearsay affirmation of his attorney. Indeed, a properly authenticated copy of the alleged order of modification was never proffered, despite the fact that its existence and effect was disputed. Accordingly, the issue is whether there has been a failure of proof (see, Wagner v Derecktor, 306 NY 386; Hunter v New York, Ontario & W. R. R. Co., 116 NY 615; 57 NY Jur 2d, Evidence and Witnesses, § 16). We agree with the Supreme Court that the petitioner has failed to meet his most basic evidentiary burden of proving the existence of the modification order."

(See also Matter of Bahar v Schwartzreich, 204 AD2d 441, 611 NYS2d 619; CPLR 409 [b])

When bringing on a "mistake of fact" proceeding, while a mistake in the arrears calculations may, in theory, be the subject of the petition, it is not going to block the wage garnishment. In BLACKMAN V BLACKMAN, 131 A.D.2D 801, 517 NYS2d 167, the Appellate Division, Second Department stated:

"Prior to the judgment of divorce, the wife served an income execution upon the husband (and his employer) pursuant to CPLR 5241 for his alleged default in maintenance and child support payments under the pendente lite orderThe husband successfully moved to vacate the income execution on the ground of mistake of fact (see, CPLR 5241 [a] [8]; []). However, the court erroneously vacated the income execution since the husband failed to proffer evidence of mistake of fact as defined by CPLR 5241 (a) (8). Under the statutory scheme, the debtor must come forward with evidence that he was not in default of his payments to the creditor, which the husband failed to do (see, Siegel, Practice Commentary, McKinney's Cons Laws of NY, CPLR 5241, at 100 [1987 Pocket Part]). In addition, the court based its determination upon the wife's errors in calculating the arrears allegedly due, which is not a valid ground pursuant to CPLR 5241 (a) (8) and (e) for the vacatur of an income execution."

In addition to the foregoing, the wage garnishment itself may be vacated as a result of any failure to comply with the proper service requirements or failure to include the mandatory warnings (the magic words, see RCBA Newsbrief, May 1998, Page 6) [see CRAMER V CRAMER, 140 A.D.2D 990, 529 NYS2d 660; MATTER OF ZAREMBA v INTERFACE FLOORING SYS., 195 AD2d 471, 600 NYS2d 120]. However, "creditors" attorney would be foolish indeed to simply ignore the procedural requirements of a "mistake of fact" petition because the issues raised are clearly improper and would be subject to summary dismissal. In MIRABELLA v MIRABELLA, 131 Misc 2d 655, 501 NYS2d 256, the court stated:

A study of the above two sections clearly shows that the "determination" of the merits of the debtor's "mistake of fact" application must be made by the court and not the creditor's attorney, who is processing the income execution. No other interpretation is possible. Furthermore, the law requires a creditor's attorney after a determination has been made by the court (or by Sheriff, clerk or support collection if processed by such officer or agency) to notify the debtor in writing whether the execution will be served and of the time that deductions will begin (see, CPLR 5241 [c] [4]).

A creditor's attorney, in processing an income execution pursuant to CPLR 5241, is granted the authority to so act as an officer of the court. The creditor's attorney in this case, having knowledge that a "mistake of fact" application had been made, violated his oath of office by serving the debtor's employer prior to a court's determination of the merits of said application and without giving notice to the debtor of the results of the court's determination.

In considering sanctions against the creditor's attorney, the court finds that his violation was not willful or contumacious but from ignorance of the new law. The court further finds that the debtor attorney's "mistake of fact" application, in the form of an order to show cause, did not clearly spell out the basis of the alleged "mistake of fact". The court has decided to impose no sanctions in this case due to the newness of the statute and the creditor attorney's admission that he now understands that he acted improperly.

However, this court, wishes to send a strong message to the legal community that, in the future, it will impose the maximum warranted sanctions against attorneys who violate the authority granted to them to process income executions under CPLR 5241. The court will no longer tolerate ignorance of this new law by an attorney as an excuse.

However, a review of the case law involving "mistake of fact" proceedings indicates that there is always the exception to the absolute; if the equities call for a liberal construction of the law, the courts seem to do so. In ZUCKERMAN, (supra), involving failure to make personal service of a Family Court "Mistake of Fact" petition, the court said personal service wasn't necessary. While service of the "mistake of fact" petition must be made within 15 days of service of the wage garnishment (TIRRITO v TIRRITO, 191 AD2d 686, 595 NYS2d 786) there are extenuating circumstances excusing same (REYNDERS V REYNDERS, 155 A.D.2D 987, 548 NYS2d 130). Indeed, the courts will bend over backward to avoid strict enforcement of the law where the payor spouse is not really guilty of any wrongdoing (MALIN v MALIN, 172 AD2d 723, 569 NYS2d 745). However, unless your case is a fact case weighing heavily in favor of the payor spouse, the law will probably be strictly construed.

The definition of a "mistake of fact" set forth in CPLR § 5241 (a) 8 seems to be rather narrow; until you read the case law and find out that it may not be as broad as defined! "In a special proceeding, where no triable issues of fact are raised, the court must make a summary determination on the pleadings and papers submitted by the parties as if a motion for summary judgment were before it (see, CPLR 409 [b]; Matter of 22 Park Place Coop. v Board of Assessors, 102 AD2d 893)" (Matter of Bahar v Schwartzreich, 204 AD2d 441, 611 NYS2d 619). The courts have found that there is no reason to vacate a wage garnishment and no reason to grant a hearing if the excuse is "the wife's errors in calculating the arrears allegedly due" (BLACKMAN V BLACKMAN, 131 A.D.2D 801, 517 NYS2d 167). They have also found that a pending downward modification petition is certainly not grounds to vacate a wage garnishment (COHN v COHN, 208 AD2d 885, 617 NYS2d 902). Legal arguments such as "laches" and "waiver" certainly do not constitute a "mistake of fact" (McGOWAN v McGOWAN, 191 AD2d 618, 595 NYS2d 240; WIKSO V WIKSO, 164 AD2D 975, 559 NYS2d 419). A claim that a party has made "partial payments" and thereby admits that he/she owes some money does not constitute a "mistake of fact" requiring a hearing (TIRRITO v TIRRITO, 191 AD2d 686, 595 NYS2d 786)

In summary, it would appear that the only two customary claims that will be acceptable and get a party a hearing are that there are no arrears or that there is no support order. If you can't make these claims you had better come up with a good case involving unusual facts for a court to exercise its equity powers and of course, you must start a new proceeding to be heard at all. While it becomes obvious that few "mistake of fact" petitions will be granted, the delay they provide will still cause many to be filed.