Garner v. Sans

Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered January 3, 2005. The order denied plaintiffs motion seeking, inter alia, child support and maintenance arrears. It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs. Memorandum: Supreme Court properly denied the motion of plaintiff seeking, inter alia, a trial on a motion made by plaintiff in 1985 (1985 motion) that remained undecided as well as child support and maintenance arrears. “The decision to deem a motion abandoned rests within the sound discretion of the court” (Krueger v Wilde [appeal No. 2], 204 AD2d 990, 990 [1994]), and we conclude that the court properly denied that part of [1166] plaintiff’s motion seeking a trial on the 1985 motion on the ground that plaintiff abandoned the 1985 motion. Plaintiff failed for over 16 years to call to the court’s attention the fact that the court had not decided the motion, despite multiple opportunities to do so (see People v Santos, 14 AD3d 316 [2005], lv denied 4 NY3d 856 [2005]). Indeed, plaintiff made numerous other motions without attempting to seek a decision on the 1985 motion (see People v Green, 19 AD3d 1075 [2005], lv denied 5 NY3d 828 [2005]). We further conclude that the court properly denied that part of plaintiff’s motion seeking child support and maintenance arrears inasmuch as plaintiffs claims for that relief are barred by the doctrine of collateral estoppel (see Pinnacle Consultants v Leucadia Natl. Corp., 94 NY2d 426, 431-432 [2000]; O’Donnell v Ferguson, 23 AD3d 1005, 1006-1007 [2005]; see generally Kaufman v Eli Lilly & Co., 65 NY2d 449, 455-456 [1985]). Present—Scudder, Kehoe, Smith and Pine, JJ.; Pigott, Jr., P.J., not participating.