Kayser v. Kayser
Opinion of the Court
—In a matrimonial action, the parties cross-appeal from stated portions of an order of the Supreme Court, Kings County, dated April 20, 1979, which, inter alia, denied the plaintiff’s motion for relief, pendente lite. Order reversed, insofar as appealed from, without costs or disbursements, and action remanded to Special Term for a hearing consistent herewith. The only issue before Special Term on this motion was whether the plaintiff was entitled to certain relief, pendente lite, and the only issue raised on appeal concerns the question of whether the plaintiff was entitled to support and maintenance, pendente lite. It was unnecessary for Special Term to reach the constitutionality of section 5-311 of the General Obligations Law in its decision and this court need not and will not pass on that issue here. The record indicated that the plaintiff is receiving public assistance and that the defendant has a substantial income. The separation agreement in dispute provides for the support of the parties’ child but not for the support of the plaintiff. Special Term did not provide support, pendente lite, on the grounds that a trial on the merits could be had within seven business days from the filing of a note of issue. We cannot condone the failure of the parties to bring this matter to trial expeditiously under the circumstances of this case and were the plaintiff not a public charge we would not hesitate to sustain this exercise of the court’s discretion. However, there is a strong public policy that requires the spouse of a public charge to provide support. Under the circumstances, it was an abuse of discretion for the court not to order support, pendente lite (cf. Guerriero v Guerriero, 40 AD2d 684). The Department of Social Services was not a party to the separation agreement in dispute and, of course, cannot be bound by
Case-law data current through December 31, 2025. Source: CourtListener bulk data.