DECISION AND ORDER The parties are divorced and have one child in common, J.L. On November 25, 2020, the father, Robert L. (hereinafter “Father” or “Mr. L.”), filed a modification petition against the mother, Charlene L. (hereinafter “Mother” or “Ms. L.”). In his petition, he alleged that J.L. “no longer resides in the home of the Respondent-Mother.” Petition for Modification of Support Order Made By Family Court (L., 11/17/20), Nassau County Family Court Docket Number F-13795-04/20C. He sought to terminate his child support obligation. On February 10, 2021, the parties appeared virtually for a preliminary conference. Mr. L. was represented by Tammi D. Pere, Esq. Ms. L. was represented by Michael R. Gionesi, Esq. On February 22, 2021, Ms. L. filed a motion to dismiss. In her motion, Ms. L. argues that under New York Civil Practice Law and Rules §2214(c), Mr. L.’s modification petition is procedurally defective. Moreover, Ms. L. maintains that under New York Civil Practice Law and Rules §3211(a)(7), Mr. L. has failed to set forth a basis to modify the parties’ child support order. She asserts that in 2017, the parties’ custodial arrangement became shared residential custody, see Modified Final Order of Custody and Parenting Time (Singer, J., 10/12/17), Nassau County Family Court Docket Number V-6802-10/17D, and the parties subsequently consented to a modified child support order in which Mr. L. agreed to pay Ms. L. child support. See Order Modifying an Order of Support on Consent (Daly-Sapraicone, J., 11/15/17), Nassau County Family Court Docket Number F-13795-04/17B. Ms. L. argues that nothing has changed since then. On March 8, 2021, Mr. L. filed opposition papers. On March 9, 2021, Ms. L. filed reply papers. On that same date, the motion was marked submit. Having considered the parties’ papers, counsel’s arguments, and the law, the Court’s determination follows: DISCUSSION MS. L.’S MOTION TO DISMISS PURSUANT TO C.P.L.R. §2214(c) IS DENIED Ms. L. argues that Mr. L.’s petition should be dismissed for failure to comply with New York Civil Practice Law and Rules §2214(c) (hereinafter “§2214(c)”). See N.Y. CPLR §2214(c) (McKinney’s 2021). She asserts that Mr. L.’s petition is procedurally defective because she maintains that he failed to attach a copy of the order he seeks to modify. The Court denies Ms. L.’s application pursuant to §2214(c). The Court has reviewed Mr. L.’s filing. His modification petition was filed along with a copy of the parties’ consent support order, dated November 15, 2017. See Petition for Modification of Support Order Made By Family Court (L., 11/17/21), Nassau County Family Court Document Number F-13795-04/20C. The Court cannot speak to why family court personnel mailed Mr. L.’s petition to Ms. L., but not his attachment.1 The Court can only surmise that such is due to the worldwide Coronavirus pandemic; to wit, all of the procedures put into place by the New York State Office of Court Administration in an effort to balance the needs of litigants against the necessity of staff to stay safe and healthy. ORDERED, that Ms. L.’s motion to dismiss under New York Civil Practice Law and Rules §2214(c) is hereby denied. MS. L.’S MOTION TO DISMISS PURSUANT TO C.P.L.R. §3211(a)(7) IS GRANTED A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to New York Civil Practice Law and Rules (hereinafter “CPLR”) §3211(a)(7). See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2021); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2021) (FCA adopts and applies CPLR where FCA is silent). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). To that end, the Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2021); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Moreover, New York Family Court Act §451 governs the grounds for seeking to modify a support order. See N.Y. FAM. CT. ACT §451 (McKinney’s 2021). A petitioner has the burden of proving that a substantial change in circumstances has occurred. See N.Y. FAM. CT. ACT §451 (McKinney’s 2021); see also Funaro v. Kudrick, 128 A.D.3d 695, 696 (2d Dep’t 2015); see also Radday v. McLoughlin, 106 A.D.3d 1015, 1015-16 (2d Dep’t 2013); see also Kasun v. Peluo, 82 A.D.3d 769, 771 (2d Dep’t 2011); Ish-Shalom v. Wittman, 81 A.D.3d 648, 648 (2d Dep’t 2011); Aranova v. Aranova, 77 A.D.3d 740, 40 (2d Dep’t 2010). Thus, in order to decide the instant motion to dismiss, the Court must determine whether Mr. L. has sufficiently alleged that a substantial change in circumstances has occurred. The Court finds that he has not. On October 12, 2017, the parties agreed to a modified custody and parenting time order in which the parties were awarded joint legal custody and shared residential custody. See Modified Final Order of Custody and Parenting Time (Singer, J., 10/12/17), Nassau County Family Court Docket Number V-6802-10/17D. Thereafter, on that same date, Mr. L. filed a child support modification petition. See Petition for Modification of an Order of Support (L., 10/12/17), Nassau County Family Court Docket Number F-13795-04/17B. In his petition, he alleged that the parties’ custodial arrangement had changed. Mr. L. referenced the parties’ modified custody order and attached a copy of the parties’ child support stipulation, dated October 12, 2017. See Stipulation (L., 10/12/17), Nassau County Family Court Docket Number F-13795-04/17B. Such stipulation was signed by both parties and notarized. On November 15, 2017, the parties appeared before the Honorable Eileen Daly-Sapraicone (hereinafter “Judge Daly-Sapraicone”) and entered into an on the record child support stipulation. A stipulation entered on the record in open court between parties is a contract. See Lenge v. Eklecco Newco, LLC, 172 A.D.3d 843, 844-45 (2d Dep’t 2019); see also Hanlon v. Hanlon, 62 A.D.3d 702, 703 (2d Dep’t 2009); Jablonski v. Jablonski, 275 A.D.2d 692, 693 (2d Dep’t 2000). Absent evidence of fraud, duress, overreaching or unconscionability, an open court stipulation will be enforced according to its terms. See Lenge, 172 A.D.3d at 844-45; see also Hanlon, 62 A.D.3d at 703; Jablonski, 275 A.D.2d at 693. Moreover, Judge Daly-Sapraicone issued a consent child support order and attendant findings of fact2 consistent with that arrangement. The parties’ 2017 custody order controls. Both parents share residential custody. In his papers, Mr. L. acknowledges that under that 2017 order, he was awarded physical custody of J.L. more often than Ms. L. Yet, he still agreed to pay child support to Ms. L. Since the parties modified their custodial arrangement to be shared residential custody and entered into a subsequent agreement that Mr. L. would pay child support, Mr. L.’s petition fails to sufficiently allege a substantial change in circumstances has occurred since the entry of the parties’ 2017 child support order. Notwithstanding, under a shared custody agreement, parties often agree to informally fluctuate their parenting time schedule as the need arises. Moreover, teenagers like J.L., sometimes decide to stay with one parent for a while and then the other as the mood strikes them. If J.L. intends to live solely in Mr. L.’s residence, it behooves Mr. L. to petition the court for primary residential custody prior to J.L.’s 18th birthday. Should Mr. L. obtain a court order granting him primary physical custody, he may certainly re-file to terminate his child support obligation. ADJUDGED, that accepting all of the alleged facts within the pleadings to be true, Mr. L. has failed to sufficiently set forth a cause of action; and it is therefore, ORDERED, that Ms. L.’s motion to dismiss under New York Civil Practice Law and Rules §3211(a)(7) is hereby granted; and it is further, ORDERED, that Mr. L.’s petition is hereby dismissed without prejudice. Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: March 15, 2021
