Foster v. Jones

301 A.D.2d 853, 753 N.Y.S.2d 396, 2003 N.Y. App. Div. LEXIS 256

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2003
• Status: Published

Opinion

Lahtinen, J.

Appeal from an order of the Supreme Court (Monserrate, J.), entered November 28, 2001 in Broome County, which, inter alia, denied defendant’s cross motion to modify a judgment of divorce.

The sole issue to be decided is whether Supreme Court erred in denying defendant’s cross motion to modify a judgment of divorce without conducting an evidentiary hearing. While a maintenance provision in a judgment of divorce may be modified upon a showing of a substantial change in circumstances (Domestic Relations Law § 236 [B] [9] [b]), the moving party must submit an affidavit sufficient to show the existence of genuine issues of fact regarding a substantial change of circumstances in order to be entitled to an evidentiary hearing to determine whether modification is warranted (see Matter of Knipple v Flanigan, 265 AD2d 618, 619, lv denied 94 NY2d 761; Matter of Scholet v Newell, 229 AD2d 621, 622; Trainor v Trainor, 188 AD2d 461; Smith v Smith, 174 AD2d 818; Hofmeister v Hofmeister, 120 AD2d 802, 803). Defendant’s conclusory statements concerning his loss of income from his business venture started in 1996 while still married to plaintiff (see Matter of Scholet v Newell, supra at 622) and his alleged poor medical condition which he contends makes him an unlikely prospect for employment (see Trainor v Trainor, supra at 462), standing alone, are insufficient to demonstrate the existence of any material issue of fact.

Mercure, J.P., Crew III, Peters and Spain, JJ., concur. Ordered that the order is affirmed, without costs.