Cohen v. Cohen

Appellate Division of the Supreme Court of New York

Cohen v. Cohen

32 A.D.2d 754, 301 N.Y.S.2d 271, 1969 N.Y. App. Div. LEXIS 3777

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 1969

StatusPublished

This text of 32 A.D.2d 754 (Cohen v. Cohen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cohen v. Cohen, 32 A.D.2d 754, 301 N.Y.S.2d 271, 1969 N.Y. App. Div. LEXIS 3777 (N.Y. Ct. App. 1969).

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Opinion

Order, entered February 14, 1969, unanimously affirmed, without costs and disbursements. It appears that the trial of this annulment or separation action was scheduled for April 28, 1969 and counsel should have proceeded with such trial rather than seeking relief by appeal. “ As we have stated many times before, the remedy for any seeming inequity in a direction for payment of temporary alimony based on conflicting affidavits is a speedy trial where the true facts as to the finances and standard of living of the parties can be ascertained, and plaintiff’s right to alimony can be finally determined. (See Lerner v. Lerner, 22 A D 2d 771; Gentile v. Gentile, 19 A D 2d 825.) ” (Orenstein v. Orenstein, 24 A D 2d 753; see, also, De Gasper v. De Gasper, 31A D 2d 886.) Of course, any award of permanent alimony should :be based upon the evidence adduced at the trial, “ and not .upon the amount awarded as temporary alimony, which is determined upon the moving papers (Schine v. Schine, 28 A D 2d 976; Sklan v. Sklan, 29 A D 2d 526; Brown v. Brown, 31 A D 2d 516).” (De Gasper v. De Gasper, supra.) Concur— Eager, J. P., Capozzoli, MeGivern, McNally and Steuer, JJ.

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Order, entered February 14, 1969, unanimously affirmed, without costs and disbursements. It appears that the trial of this annulment or separation action was scheduled for April 28, 1969 and counsel should have proceeded with such trial rather than seeking relief by appeal. “ As we have stated many times before, the remedy for any seeming inequity in a direction for payment of temporary alimony based on conflicting affidavits is a speedy trial where the true facts as to the finances and standard of living of the parties can be ascertained, and plaintiff’s right to alimony can be finally determined. (See Lerner v. Lerner, 22 A D 2d 771; Gentile v. Gentile, 19 A D 2d 825.) ” (Orenstein v. Orenstein, 24 A D 2d 753; see, also, De Gasper v. De Gasper, 31A D 2d 886.) Of course, any award of permanent alimony should :be based upon the evidence adduced at the trial, “ and not .upon the amount awarded as temporary alimony, which is determined upon the moving papers (Schine v. Schine, 28 A D 2d 976; Sklan v. Sklan, 29 A D 2d 526; Brown v. Brown, 31 A D 2d 516).” (De Gasper v. De Gasper, supra.) Concur— Eager, J. P., Capozzoli, MeGivern, McNally and Steuer, JJ.

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Bluebook (online)

32 A.D.2d 754, 301 N.Y.S.2d 271, 1969 N.Y. App. Div. LEXIS 3777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-cohen-nyappdiv-1969.