Order, Supreme Court, New York County (Kenneth Shorter, J.), entered July 25, 1986, which, inter alia, denied defendant’s motion to renew the plaintiff’s prior application for pendente lite relief, affirmed, without costs. Appeal from the order, Supreme Court, New York County (Kenneth Shorter, J.), entered March 10, 1986, which granted plaintiff’s motion for pendente lite relief to the extent of awarding plaintiff $100 per week temporary maintenance and $200 per week child support, and directing defendant to pay all carrying charges, mortgage payments and utilities on the marital residence, to maintain on behalf of the plaintiff and the parties’ minor child all present policies of insurance and to pay certain medical expenses, and to pay the child’s private school tuition, dismissed as superseded by the appeal from the order denying renewal without costs. Sua sponte, the Justice presiding in the IAS Part in which this action is pending is directed to schedule a trial to commence no later than June 15, 1987.
This case emphatically demonstrates the wisdom of the oft-[408]*408repeated maxim that the appropriate remedy for a dispute over a temporary award of maintenance, based as it is on conflicting and inadequate affidavits, is a prompt trial where the facts may be examined into in far greater detail and where a more accurate appraisal of the situations of the parties may be obtained. (Getson v Getson, 91 AD2d 540; Braga v Braga, 82 AD2d 727; Woram v Gilliam, 78 AD2d 796; Rappeport v Rappeport, 46 AD2d 756.) That is particularly so here where the parties have an eight-year-old child whose immediate future would be traumatically disrupted by summary imposition of the extreme reductions in the amount of pendente lite maintenance and child support proposed by the dissent, based solely upon papers which do not fully and accurately reflect the totality of the current economic circumstances of the parties. That the action, which was commenced in December 1985, is presently on the calendar awaiting trial further militates against imposing, at this juncture, sweeping, and possibly irreversibly harmful, appellate modifications.
While the dissent alludes to alleged "criticism” of the speedy trial rule, a reading of the authorities cited makes clear that they do not take issue with the long-settled rule that a trial, where realistic findings can be made on evidence rather than on conflicting self-serving affidavits, is the appropriate remedy for any perceived inequities in a temporary award of maintenance. (See, 11B Zett-Edmonds-Schwartz, NY Civ Prac, Matrimonial Actions § 38.02 [4].)
The discussions which are characterized by the dissent as "criticism” are, in fact, concerned with the ramifications of extended discovery proceedings in complex equitable distribution cases (11B Zett-Edmonds-Schwartz, NY Civ Prac, Matrimonial Actions § 38.02 [4]), particularly within the context of the statutory preference under Domestic Relations Law § 249 which "authorizes the court to direct that an action be placed upon the trial calendar 'forthwith’ (even though no note of issue has been, or could properly be, filed)” (Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C249:2). These concerns, of course, are wholly irrelevant to the instant case where discovery has been completed and a note of issue and statement of readiness have already been filed and the case has been on the calendar for several months.
Parenthetically, it may be noted that even in a case where a prompt trial will not be possible because of the need for protracted discovery, modification of the temporary award will not be granted where the precise financial status of the [409]*409parties is in doubt and the appropriate remedy is a denial without prejudice to renewal before the court in which the case is pending "after a more accurate appraisal of the financial situation of the parties has been obtained.” (Besen v Besen, 94 AD2d 637, 638.)
While the dissent cites Pieri v Pieri (91 AD2d 1016) for the proposition that "the speedy trial rule is not ironclad”, the precise statement made by the court in that case is instructive. That statement, in its entirety is as follows: "Although appeals from orders awarding temporary maintenance and child support are not to be encouraged and a speedy trial is the preferred remedy for resolving such issues (Goldman v Goldman, 45 AD2d 719; Singh v Singh, 41 AD2d 914), the rule is not ironclad when the award is deficient (Brokaw v Brokaw, 57 AD2d 519).” (Supra, at 1016-1017 [emphasis supplied]; see also, Byer, A Guide to Civil Motions in New York State Courts § 614 [9a], at 162 [1987 Supp], and cases therein cited.)
The underlying soundness of the principle which prefers a prompt trial, with its evidentiary resources, to appellate modifications, on unenlightening submitted papers, has been continually reaffirmed in this "age of equitable distribution” (see, e.g., Lehman v Lehman, 104 AD2d 546; Belvin v Belvin, 111 AD2d 546; Bennett v Bennett, 105 AD2d 1047; Pleto v Pleto, 98 AD2d 994; Peters v Peters, 100 AD2d 900; Blasco v Blasco, 99 AD2d 747) and application of this principle is particularly appropriate in this case.
The difficulties in making definitive valuations in the instant case stem from the substantial changes which occurred in the husband’s business fortunes prior to the commencement of this action, the evolving status of his current business endeavors, the wife’s lack of knowledge about his financial position and the husband’s failure on the motion for temporary maintenance and child support to file a net worth statement as required by Uniform Rules for the New York State Trial Courts (22 NYCRR) § 202.16, ostensibly because he was proceeding pro se, although the record reflects that he had consulted and was in contact with legal counsel from the outset and that he had been advised in court of such requirement.
On that motion, Special Term awarded the plaintiff pendente lite relief in the amounts of $100 per week maintenance and $200 per week child support in addition to a direction that defendant pay all carrying charges on the marital residence, that he continue to maintain various policies of medical, and other insurance on behalf of the wife and child, pay [410]*410all unreimbursed nonelective medical expenses for them and pay the child’s private school tuition and related expenses. In arriving at this determination, the court indicated that it had drawn an inference unfavorable to the defendant with respect to the financial issues raised in the application because of his failure to submit an "appropriate financial affidavit”, citing 22 NYCRR 202.16 (g) (4) (i).
Shortly after this order was entered, defendant formally obtained counsel and moved for renewal, or alternatively, for downward modification of the award pursuant to Domestic Relations Law §§ 236 and 240. This time, defendant submitted a statement of net worth, in addition to an affidavit with respect to his financial circumstances, including information as to his current endeavors in the new business, Prosales, Inc., from which he indicated he was receiving a monthly draw of $4,333, or $3,453 after taxes, in addition to $2,000 a month as an office expense allowance while using the marital apartment as his office.
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Order, Supreme Court, New York County (Kenneth Shorter, J.), entered July 25, 1986, which, inter alia, denied defendant’s motion to renew the plaintiff’s prior application for pendente lite relief, affirmed, without costs. Appeal from the order, Supreme Court, New York County (Kenneth Shorter, J.), entered March 10, 1986, which granted plaintiff’s motion for pendente lite relief to the extent of awarding plaintiff $100 per week temporary maintenance and $200 per week child support, and directing defendant to pay all carrying charges, mortgage payments and utilities on the marital residence, to maintain on behalf of the plaintiff and the parties’ minor child all present policies of insurance and to pay certain medical expenses, and to pay the child’s private school tuition, dismissed as superseded by the appeal from the order denying renewal without costs. Sua sponte, the Justice presiding in the IAS Part in which this action is pending is directed to schedule a trial to commence no later than June 15, 1987.
This case emphatically demonstrates the wisdom of the oft-[408]*408repeated maxim that the appropriate remedy for a dispute over a temporary award of maintenance, based as it is on conflicting and inadequate affidavits, is a prompt trial where the facts may be examined into in far greater detail and where a more accurate appraisal of the situations of the parties may be obtained. (Getson v Getson, 91 AD2d 540; Braga v Braga, 82 AD2d 727; Woram v Gilliam, 78 AD2d 796; Rappeport v Rappeport, 46 AD2d 756.) That is particularly so here where the parties have an eight-year-old child whose immediate future would be traumatically disrupted by summary imposition of the extreme reductions in the amount of pendente lite maintenance and child support proposed by the dissent, based solely upon papers which do not fully and accurately reflect the totality of the current economic circumstances of the parties. That the action, which was commenced in December 1985, is presently on the calendar awaiting trial further militates against imposing, at this juncture, sweeping, and possibly irreversibly harmful, appellate modifications.
While the dissent alludes to alleged "criticism” of the speedy trial rule, a reading of the authorities cited makes clear that they do not take issue with the long-settled rule that a trial, where realistic findings can be made on evidence rather than on conflicting self-serving affidavits, is the appropriate remedy for any perceived inequities in a temporary award of maintenance. (See, 11B Zett-Edmonds-Schwartz, NY Civ Prac, Matrimonial Actions § 38.02 [4].)
The discussions which are characterized by the dissent as "criticism” are, in fact, concerned with the ramifications of extended discovery proceedings in complex equitable distribution cases (11B Zett-Edmonds-Schwartz, NY Civ Prac, Matrimonial Actions § 38.02 [4]), particularly within the context of the statutory preference under Domestic Relations Law § 249 which "authorizes the court to direct that an action be placed upon the trial calendar 'forthwith’ (even though no note of issue has been, or could properly be, filed)” (Scheinkman, Practice Commentary, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law C249:2). These concerns, of course, are wholly irrelevant to the instant case where discovery has been completed and a note of issue and statement of readiness have already been filed and the case has been on the calendar for several months.
Parenthetically, it may be noted that even in a case where a prompt trial will not be possible because of the need for protracted discovery, modification of the temporary award will not be granted where the precise financial status of the [409]*409parties is in doubt and the appropriate remedy is a denial without prejudice to renewal before the court in which the case is pending "after a more accurate appraisal of the financial situation of the parties has been obtained.” (Besen v Besen, 94 AD2d 637, 638.)
While the dissent cites Pieri v Pieri (91 AD2d 1016) for the proposition that "the speedy trial rule is not ironclad”, the precise statement made by the court in that case is instructive. That statement, in its entirety is as follows: "Although appeals from orders awarding temporary maintenance and child support are not to be encouraged and a speedy trial is the preferred remedy for resolving such issues (Goldman v Goldman, 45 AD2d 719; Singh v Singh, 41 AD2d 914), the rule is not ironclad when the award is deficient (Brokaw v Brokaw, 57 AD2d 519).” (Supra, at 1016-1017 [emphasis supplied]; see also, Byer, A Guide to Civil Motions in New York State Courts § 614 [9a], at 162 [1987 Supp], and cases therein cited.)
The underlying soundness of the principle which prefers a prompt trial, with its evidentiary resources, to appellate modifications, on unenlightening submitted papers, has been continually reaffirmed in this "age of equitable distribution” (see, e.g., Lehman v Lehman, 104 AD2d 546; Belvin v Belvin, 111 AD2d 546; Bennett v Bennett, 105 AD2d 1047; Pleto v Pleto, 98 AD2d 994; Peters v Peters, 100 AD2d 900; Blasco v Blasco, 99 AD2d 747) and application of this principle is particularly appropriate in this case.
The difficulties in making definitive valuations in the instant case stem from the substantial changes which occurred in the husband’s business fortunes prior to the commencement of this action, the evolving status of his current business endeavors, the wife’s lack of knowledge about his financial position and the husband’s failure on the motion for temporary maintenance and child support to file a net worth statement as required by Uniform Rules for the New York State Trial Courts (22 NYCRR) § 202.16, ostensibly because he was proceeding pro se, although the record reflects that he had consulted and was in contact with legal counsel from the outset and that he had been advised in court of such requirement.
On that motion, Special Term awarded the plaintiff pendente lite relief in the amounts of $100 per week maintenance and $200 per week child support in addition to a direction that defendant pay all carrying charges on the marital residence, that he continue to maintain various policies of medical, and other insurance on behalf of the wife and child, pay [410]*410all unreimbursed nonelective medical expenses for them and pay the child’s private school tuition and related expenses. In arriving at this determination, the court indicated that it had drawn an inference unfavorable to the defendant with respect to the financial issues raised in the application because of his failure to submit an "appropriate financial affidavit”, citing 22 NYCRR 202.16 (g) (4) (i).
Shortly after this order was entered, defendant formally obtained counsel and moved for renewal, or alternatively, for downward modification of the award pursuant to Domestic Relations Law §§ 236 and 240. This time, defendant submitted a statement of net worth, in addition to an affidavit with respect to his financial circumstances, including information as to his current endeavors in the new business, Prosales, Inc., from which he indicated he was receiving a monthly draw of $4,333, or $3,453 after taxes, in addition to $2,000 a month as an office expense allowance while using the marital apartment as his office.
Plaintiff opposed the motion for renewal, contending that it was, in fact, one for reargument which contained no new facts which were unavailable to the court or defendant at the time of the original motion and that no valid excuse was offered for the failure to submit this material on the original motion. The motion was denied on these grounds.
We affirm the denial of renewal in this case both for the reasons given by the Justice in the IAS Part and because the papers submitted on the application for renewal, even if we were to consider them, would afford little assistance in enabling this court to set some alternatively realistic level of pendente lite maintenance. The husband acknowledged in his papers that in the short period between the original motion and the renewal application his income had increased from zero to a "draw” of $4,300 a month. While this demonstrated that his business endeavors were prospering and that the future augured well, we cannot accept without question, as does the dissent, that the defendant’s ability to pay is circumscribed by the discretionary amount of the draw which he indicated he was receiving.
Realistically, it cannot be overlooked that the designation of the precise amount of the defendant’s "draw” from the business may well be related to the pendency of the matrimonial action and his other litigations, and that an allowance for business or office business expenses, de hors such draw, also plays a significant role in defendant’s over-all economic sitúa[411]*411tion. Moreover, it is clear that defendant’s acknowledged "draw” does not necessarily accurately reflect the income he is capable of earning given his business background and experience (see, Kay v Kay, 37 NY2d 632; Williamson v Williamson, 84 AD2d 606). Only a trial, of course, can adequately flesh out the realities of defendant’s full abilities to meet the needs of his family.
We cannot agree that the record before us supports the drastic modifications of the award proposed by the dissent, which wholly fails to take into account the realistic basic needs of the wife and eight-year-old daughter. While it may well be, as Justice Wallach concludes, that it will ultimately be established that the apartment occupied by plaintiff and the child is "beyond the parties’ means”, the limited record before us composed of unilaterally supplied facts as to defendant’s economic position, which plaintiff has had no real opportunity to realistically controvert, hardly provides the appropriate vehicle by which to summarily make that determination with its far-reaching and disturbing consequences, particularly to the child. Indeed, the recommended modifications effectively eliminate the need for a trial at all and would render meaningless any contrary conclusions that may actually be warranted on the basis of the evidence as to the husband’s actual financial circumstances which is elicited at such trial.
As indicated, the only appropriate remedy here is an immediate trial. Since this matter was commenced 18 months ago and has been on the calendar awaiting trial since January 1987, and since the court rules make provision, where necessary, for matters requiring immediate disposition (see, Uniform Rules NY St Trial Cts [22 NYCRR] § 202.3 [c] [4]), the Justice presiding in the IAS Part in which this case is pending shall schedule the trial of this matter to commence no later than June 15, 1987. Concur—Kupferman, J. P., and Ellerin, J. Rosenberger, J., concurs with the majority memorandum and in a separate concurring memorandum and Sullivan and Wallach, JJ., dissent in a memorandum by Wallach, J., all as follows: Rosenberger, J. (concurring).
I concur with the majority memorandum, but feel there are parts of the dissent which warrant brief discussion.
The dissent states that the appellant, as a pro se litigant, showed considerable diligence and attentiveness to the lawsuit. It further "hesitate[s] to conclude * * * that he was [412]*412given an opportunity by the court to submit a net worth statement after being told of the consequences for failing to do so.” In an affidavit, dated April 21, 1986, the defendant conceded that, at a conference held at court on February 26, 1986, the law assistant conducting the conference for the court "emphasize[d] the fact that I had not attached a separate form of net worth statement to my affidavit”. On February 27, 1986, the next day, the defendant wrote a letter to the court dealing with other matters, but persisted in his neglect to file the required statement, the importance of which had been explained to him at court the preceding day.
I cannot place any weight, in these circumstances, on the defendant’s alleged "pro se” status. Defendant consulted with counsel after receiving the initial motion papers in this case. That attorney, who later entered the case officially and is still representing the defendant, telephoned plaintiffs attorney within days after the service of the motion. He wrote to defendant’s attorney two days after telephoning him and, while disclaiming appearing for the defendant, suggested a meeting with plaintiffs attorneys to "discuss the situation”. Parenthetically, it bears noting that an examination of the papers reproduced in the record shows that the defendant’s original "pro se” affidavit in opposition to plaintiffs motion bears a striking resemblance to those papers later submitted by defendant’s counsel. All appear to have been typed on the same typewriter. The spacing, numbering of paragraphs, and other physical details of the "pro se” and by counsel papers appear identical.
As noted by the majority, a prompt trial is the proper forum for detailed examination into, and accurate appraisal of, the situation of the parties. Nothing approaching an accurate appraisal is possible on this record. Credibility is very much an issue. Some examples may be illustrative of the problem. The defendant consistently speaks of his "draw” of $4,333 per month. He has occasionally referred to the $2,000 per month he receives for office expense. He has, however, not maintained an office. Initially he worked from his home in New York. When he removed from the family apartment, he went to Philadelphia where office and residential facilities have been provided for him. His actual monthly income therefore has been almost 50% greater than that which he has alleged (and which the dissent has adopted). He has acknowledged that his daughter’s tuition has been halved, to $3,600 per year, by her school. Yet his affidavits and sworn financial statement still claim $600 per month, double the amount [413]*413actually payable. These are but two of many possible examples.
The dissent maintains that the motion to dismiss the action pursuant to CPLR 3012 (b) should be held in abeyance pending hearing and findings by the trial court. It is acknowledged that a mere denial by the recipient that he ever received papers served by mail is insufficient to rebut the presumption of proper mailing (Engel v Lichterman, 62 NY2d 943 [1984]). In the instant case, the fact that the denial by the defendant of receipt of the originally mailed complaint is oft repeated should not serve to elevate it above the level of that which it is: a denial unsupported by more.