Salvati v. Salvati , 37 A.D.2d 858 ( 1971 )

In an action in which plaintiff was granted a judgment of divorce, defendant appeals from an order-judgment of the Supreme Court, Westchester County, dated April 23, 1971, which granted plaintiff’s motion, pursuant to section 244 of the Domestic Relations Law, for a judgment for arrears of support payments directed in the divorce judgment to be paid by defendant. Order-judgment reversed, on the law, without costs, and ease remanded to the Special Term for a hearing and a new determination. In view of the issues of fact present on the face of the submitted affidavits, it was an improvident exercise of discretion for Special Term to grant plaintiff summary judgment. The issues to be considered are (1) whether plaintiff’s delay in making her motion was justified, (2) whether plaintiff’s relatives’ support of the parties’ infant children was with a view towards reimbursement and (3) if it be decided that plaintiff is entitled to a judgment for arrears, what the proper amount of the arrears should he. Rabin, P. J., Munder, Shapiro, Gulotta and Brennan, JJ., concur.