Opinion
November 10, 1992
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
Order, Supreme Court, New York County (Elliott Wilk, J.), entered May 5, 1992, which, inter alia, denied plaintiff's motion for leave to renew and denied defendant's cross-motion for sanctions against plaintiff, unanimously affirmed, without costs.
Since the 1984 interlocutory judgment of divorce specifically provided that payments under the pendente lite order should continue, the court did not err in rejecting plaintiff's argument that the pendente lite order terminated upon the entry of the judgment of divorce (compare, Perrotta v Perrotta, 149 A.D.2d 317, lv dismissed 74 N.Y.2d 842).
The pendente lite order provides, inter alia, that plaintiff pay defendant the sum of $300 per week for her maintenance and the sum of $50 per week for the support of the parties' infant daughter. Defendant sought arrears in the sum of $58,800 which had allegedly accrued over a six year period. In opposition to defendant's motion, plaintiff alleged that in 1985, he and defendant orally agreed that plaintiff would pay $700 per month in support, one-half of his daughter's private school education and all of his daughter's medical and dental bills. Plaintiff urged that defendant should be estopped from seeking arrears since plaintiff had relied to his detriment upon his agreement with plaintiff requiring him to pay more than he would have been required to pay under the pendente lite order. Assertions contained in the parties' affidavits raise a question of fact as to whether defendant waived her right to arrears under the pendente lite order and therefore, the court should have ordered a hearing on the issue (Friedman v Exel, 116 A.D.2d 433).
There is no merit to plaintiff's argument that the court erred in modifying the pendente lite order to increase child support and awarding attorney's fees, transcription costs and health and dental insurance to defendant without conducting a hearing. This Court has consistently held that pendente lite support and counsel fees may be awarded on affidavits alone and the remedy for any seeming inequity in a pendente lite award is a speedy trial (see, e.g., Gross v Gross, 44 A.D.2d 806).
Finally, the court did not abuse its discretion in refusing to impose a sanction against plaintiff pursuant to 22 NYCRR 130-1.1.
Concur — Sullivan, J.P., Carro, Milonas and Kupferman, JJ.