Van Etten v. Van Etten

207 A.D.2d 992, 617 N.Y.S.2d 689, 1994 N.Y. App. Div. LEXIS 10208

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1994
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Where, as here, affidavits submitted by the parties contained factual allegations that were sharply disputed, it was error for Supreme Court to alter the existing custodial situation and to limit visitation without conducting a full evidentiary hearing (see, Tacconi v Tacconi, 197 AD2d 929; Matter of Amy W., 122 AD2d 592). We vacate the custody and visitation provisions of Supreme Court’s order and remit those issues for an immediate hearing.

Supreme Court properly awarded temporary exclusive possession of the marital residence to plaintiff. Plaintiff’s allegations of physical violence, though controverted by defendant, were sufficiently corroborated by non-party affidavits to justify the court’s summary award of possession (see, De Millio v De Millio, 106 AD2d 424; cf., Preston v Preston, 147 AD2d 464, 465; Waldeck v Waldeck, 138 AD2d 373).

Defendant failed to preserve for review his contention that plaintiff did not submit sufficient proof on her pendente lite application to show that the cause of action for divorce could be established (see, Oram v Capone, 206 AD2d 839). In any event, that contention and defendant’s remaining contentions lack merit. (Appeal from Order of Supreme Court, Oneida County, Shaheen, J.—Child Custody.) Present—Green, J. P., Balio, Wesley, Callahan and Boehm, JJ.