3417-3419. IN RE ANTHONY S., petres, v. MONIQUE T. B., res-res — IN RE ANTHONY S., pet-res, v. MONIQUE T. B., res-res — IN RE MONIQUE T. B., pet-ap, v. ANTHONY S., res-res — Orrick, Herrington & Sutcliffe LLP, New York (Ren A. Kathawala of counsel), for ap — Order, Family Court, Bronx County (Alicea Elloras, J.), entered on or about February 29, 2016, which, to the extent appealed from, awarded respondent mother child support in the amount of $388 per month, unanimously reversed, on the law and the facts, without costs, the award vacated, and the matter remanded for a new child support determination consistent with this decision. Order, same court and Judge, entered on or about April 4, 2016, which denied the mother’s motion to dismiss the father’s modification petition, unanimously affirmed, without costs. Appeal from order, same court and Judge, entered on or about February 29, 2016, which denied the mother’s motion for attorney’s fees, unanimously dismissed, without costs, as superseded by order, same court and Judge, entered on or about April 6, 2016, which, upon reargument, granted the mother’s motion for attorney’s fees to the extent of awarding fees in the amount of $250.
Family Court improvidently exercised its discretion in not imputing to the father as income the $500 per month he was earning from his parttime employment in 2012 solely on the basis of Family Ct Act §437-a, which bars the Family Court from requiring a recipient of social security disability benefits to engage in certain employment related activities. That statute is not dispositive in this case where the father had been employed during the pendency of his social security disability benefits application and did not show that he was unable to continue to be employed in any capacity after he began receiving benefits (see Matter of Gavin v. Worner, 112 AD3d 928, 929 [2d Dept 2013]; Matter of Mandelowitz v. Bodden, 68 AD3d 871 [2d Dept 2009], lv denied 14 NY3d 710 [2010]; Matter of Bukovinsky v. Bukovinsky, 299 AD2d 786, 787-788 [3d Dept 2002], lv dismissed 100 NY2d 534 [2000]). Accordingly, the matter is remanded for a new determination as to the amount of child support, including a new determination as to whether the $500 per month should be imputed to the father.
