Malamut v. Malamut — 210 A.D.2d 382

Majority

p. 382

Barbara C. Malamut, Respondent, v Richard M. Malamut, Appellant.

[621 NYS2d 86]

—In a matrimonial action in which the parties were divorced by a judgment dated April 3, 1986, the defendant former husband appeals from an order of

p. 383

the Supreme Court, Nassau County (O’Brien, J.), dated January 26,1993, which, inter alia, denied, without a hearing, that branch of his motion which was for a downward modification of his $3,600 monthly maintenance obligation.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and new determination.

It is well settled that a hearing is warranted on the issue of whether there has been a "substantial change in circumstances” (Domestic Relations Law § 236 [B] [9] [b]), where the parties’ affidavits disclose the existence of genuine questions of fact (see, Wyser-Pratte v Wyser-Pratte, 66 NY2d 715 ; Schnoor v Schnoor, 189 AD2d 809 , 810). Here, the conflicting affidavits raise questions as to the plaintiff’s ability to be self-supporting. We therefore remit the matter to the Supreme Court, Nassau County, for a hearing. Sullivan, J. P., Lawrence, Ritter and Joy, JJ., concur.

Cases cited

Wyser-Pratte v. Wyser-Pratte 66 NY2d 715 N.Y. 1985-10-17 p. 383
Schnoor v. Schnoor 189 AD2d 809 N.Y. App. Div. 1993-01-19 at 810 p. 383

Statutes and regulations cited

Domestic Relations Law p. 383