Catherine Santucci, respondent, v Robert Santucci, appellant. v. <<

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Supreme Court, Appellate Division, Second Department, New York.

Catherine Santucci, respondent, v Robert Santucci, appellant.

2011–03357 (Index No. 31075/08)

Decided: February 07, 2012

REINALDO E. RIVERA, J.P. THOMAS A. DICKERSON CHERYL E. CHAMBERS LEONARD B. AUSTIN, JJ. Robert Santucci, Westhampton, N.Y., appellant pro se.

Submitted—January 19, 2012

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Quinn, J.), dated February 24, 2011, as, without a hearing, granted that branch of the plaintiff's motion which was to hold him in contempt for failure to satisfy his pendente lite maintenance and child support obligations.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing in accordance herewith and, thereafter, a new determination of that branch of the plaintiff's motion which was to hold the defendant in contempt.

The Supreme Court improperly granted that branch of the plaintiff's motion which was to hold the defendant in contempt without first holding an evidentiary hearing regarding the defendant's assertion of financial inability to satisfy his pendente lite maintenance and child support obligations (see Domestic Relations Law § 246[3];  Greco v. Rodriguez, 28 AD3d 422, 422;  Gifford v. Gifford, 223 A.D.2d 669, 670;  Boritzer v. Boritzer, 137 A.D.2d 477, 477–478).   Accordingly, the matter must be remitted to the Supreme Court, Suffolk County, for such a hearing and, thereafter, a new determination of that branch of the plaintiff's motion which was to hold the defendant in contempt.

RIVERA, J.P., DICKERSON, CHAMBERS and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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