Polley v. Polley

Appellate Division of the Supreme Court of New York

Polley v. Polley

62 A.D.2d 986, 403 N.Y.S.2d 321, 1978 N.Y. App. Div. LEXIS 11021

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

DecidedApril 3, 1978

StatusPublished

Cited by2 cases

This text of 62 A.D.2d 986 (Polley v. Polley) 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

Polley v. Polley, 62 A.D.2d 986, 403 N.Y.S.2d 321, 1978 N.Y. App. Div. LEXIS 11021 (N.Y. Ct. App. 1978).

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Opinion

In a matrimonial action, the defendant husband appeals from so much of a resettled order of the Supreme Court, Westchester County, dated September 9, 1977, as awarded temporary alimony to the plaintiff wife in the amount of $500 per week, retroactive to June 17, 1977. Order reversed insofar as appealed from, without costs or disbursements, and motion for temporary alimony referred to the trial court for determination. In view of the photographic evidence in the record, which strongly indicates that plaintiff may have been guilty of adultery, Special Term improvidently exercised its discretion in granting an award of temporary alimony without first resolving the factual issues surrounding the photograph and the circumstances under which it was taken. This can best be accomplished at the trial where, if the trier of the facts credits the evidence. of the wife’s adultery, a retroactive award of temporary alimony will be barred (see Nobel v Nobel, 49 AD2d 850; see, also, Domestic Relations Law, § 236). If her explanation is credited, such an award may be made. Martuscello, J. P., Damiani, Suozzi, Gulotta and O’Connor, JJ., concur.

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In a matrimonial action, the defendant husband appeals from so much of a resettled order of the Supreme Court, Westchester County, dated September 9, 1977, as awarded temporary alimony to the plaintiff wife in the amount of $500 per week, retroactive to June 17, 1977. Order reversed insofar as appealed from, without costs or disbursements, and motion for temporary alimony referred to the trial court for determination. In view of the photographic evidence in the record, which strongly indicates that plaintiff may have been guilty of adultery, Special Term improvidently exercised its discretion in granting an award of temporary alimony without first resolving the factual issues surrounding the photograph and the circumstances under which it was taken. This can best be accomplished at the trial where, if the trier of the facts credits the evidence. of the wife’s adultery, a retroactive award of temporary alimony will be barred (see Nobel v Nobel, 49 AD2d 850; see, also, Domestic Relations Law, § 236). If her explanation is credited, such an award may be made. Martuscello, J. P., Damiani, Suozzi, Gulotta and O’Connor, JJ., concur.

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Bluebook (online)

62 A.D.2d 986, 403 N.Y.S.2d 321, 1978 N.Y. App. Div. LEXIS 11021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polley-v-polley-nyappdiv-1978.

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