Schapiro v. Schapiro

—Order, Supreme Court, New York County (Marylin Diamond, J.), entered March 13, 1998, which, to the extent appealed from, denied, without a hearing, defendant’s cross-motion to terminate his payment of maintenance to plaintiff pursuant to the parties’ antenuptial agreement dated September 27, 1983, unanimously reversed, on the law, without costs, and defendant’s cross-motion granted only to the extent of remanding the matter to the IAS Court for an evidentiary hearing and determination of the issue of plaintiff’s alleged cohabitation with another man.

It was error to deny défendant-husband a hearing on his cross-motion to terminate maintenance payments based on plaintiff-wife’s alleged cohabitation with another man in violation of the. terms of the parties’ antenuptial agreement. The IAS Court relied upon what the parties’ eight-year-old daughter stated during an in camera examination. In another context, this brief interview might be relied upon to provide additional relevant information on the issue. Here, however, the husband’s contentions that his former wife had had a child by the other man and that they had lived together during plaintiff’s pregnancy and that an investigator had observed the Ü other man driving plaintiff’s car, shopping for food with ?, .plaintiff, and spending considerable time at plaintiff’s apart-: ; ment, raise genuine issues of fact requiring a hearing. Concur — Nardelli, J. P., Wallach, Lerner and Andrias, JJ.