Mulligan v. Mulligan

Mikoll, J. (dissenting).

I respectfully dissent. Section 244 of the Domestic Relations Law was designed to eliminate the burden of plenary or protracted litigation in divorce, separation or annulment proceedings where no material issues of fact are raised in the affidavits in support of and opposed to the motion. The plaintiff husband, in the instant proceeding, has presented facts which sufficiently raise the issue of his ability to pay the sum ordered because of a dramatic drop in his income and because of a serious impairment to his health. Under such circumstances, a plenary hearing is indicated (Pecukonis v Pecukonis, 49 AD2d 985).