Opinion
October 19, 1972
Order, Supreme Court, New York County, entered on July 31, 1972, unanimously modified, on the law and the facts, so as to reduce the temporary child support payments to $200 per week from August 1, 1972; to delete the requirement of posting of security by the defendant; and to vacate the partial summary judgment on the second cause of action in plaintiff's favor and to deny summary judgment; and otherwise affirmed, without costs and without disbursements. Defendant-appellant should not be compelled at this time to pay both hospital, boarding school and therapy expenses for the child and for the total expenses of the mother's apartment. Under the fast changing patterns and needs of the child we feel that the questions of the liability and the amount of hospital and other medical and school expenses to be paid by the father should be determined by the trial court. It appears that defendant, although a non-resident, has considerable reachable assets in the State of New York. Furthermore, the record clearly shows that defendant has voluntarily paid large sums for the child's support and that he has never violated any order of the court. Under the circumstances, it was an abuse of discretion for Special Term to require the posting of security. (See Smith v. Hayes, 36 A.D.2d 570.) In the second cause of action, the child's mother seeks reimbursement for expenditures made by her pursuant to an alleged agreement with the defendant. The letter of April 3, 1970 appears to be a commitment to pay the mother for Caryn's support. However, the complaint seeks reimbursement. In view of the conflicting affidavits as to the extent, duration and scope of liability, summary judgment should not have been granted. (See Yourth v. Boggs, 33 A.D.2d 549.)
Concur — McGivern, J.P., Nunez, Kupferman, Steuer and Capozzoli, JJ.