Carbo v. Carbo , 107 A.D.2d 733 ( 1985 )

In an action for ejectment and for a money judgment for use and occupancy, plaintiff appeals from an order of the Supreme Court, Kings County (Jones, J.), dated February 8, 1984, which (1) denied plaintiff’s motion for summary judgment or for the alternative relief of an order of preclusion; and (2) granted defendant’s cross motion for an order directing plaintiff to serve a bill of particulars.

Order affirmed, with costs.

While plaintiff seeks to enforce one part of a judgment of divorce, the record contains evidence that he was in violation of the support and financial obligations imposed upon him by the same judgment of divorce. His default in that respect predated March 15, 1982, the date on which he claims defendant was required to vacate the former marital premises because the parties’ youngest child had attained the age of 21 years.

The judgment of divorce also refers to a “stipulation entered into in open court between the parties on June 19, 1975”. Said stipulation is not printed in the record and is not before us, giving rise to further doubt as to appellant’s entitlement to summary judgment.

Under all of the circumstances, there are triable issues of fact. Summary judgment was properly denied and defendant’s cross motion for an order directing plaintiff to serve a bill of particulars was properly granted. Lazer, J. P., Thompson, Weinstein and Eiber, JJ., concur.