RACKIS v. ADELMAN (2005)

In a matrimonial action in which the parties were divorced by judgment dated April 21, 1994, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Panepinto, J.), dated July 20, 2004, as denied her motion for summary judgment on her claim for child support arrears in the sum of $63,120 for the period from March 31, 1994, to April 22, 2004.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly denied the plaintiff's motion for summary judgment on her claim for child support arrears.   The motion was made before the defendant had an opportunity to conduct discovery.   In any event, the defendant's affidavit submitted in opposition to the motion constituted sufficient proof by a person having knowledge of the facts to raise a triable issue of fact with respect to the terms of an oral agreement allegedly entered into by the parties (see CPLR 3212[b];  DeLeonardis v. Brown, 15 A.D.3d 525, 790 N.Y.S.2d 686;  Harbor Seafood v. Quality Fish Co., 194 A.D.2d 713, 600 N.Y.S.2d 103).   Thus, the Supreme Court correctly denied the plaintiff's motion.