Marillo v. Marillo

— Appeal from an order of the Supreme Court at Special Term (Kahn, J.), entered September 9, 1982 in Albany County, which granted plaintiff’s motion for summary judgment. On June 22,1982, plaintiff commenced this action against defendant to recover damages allegedly caused by defendant’s default in payments to plaintiff due under a separation agreement between the parties. At Special Term, the court granted plaintiff’s motion for summary judgment 616 based upon a finding that the affidavit submitted by defendant’s attorney in .opposition to the motion was insufficient to raise triable issues of fact. Accordingly, plaintiff was awarded a judgment in the sum of $5,300 for child support for the period from March 9, 1980 through April 28, 1982 and in the sum of $2,890 for maintenance for the period from February 23,1981 through April 28, 1982, and her attorney was directed to release to her as partial satisfaction of the judgment the sum of $1,902.26 which he had been holding n escrow following the sale of the former marital residence. Defendant now challenges the grant of summary judgment, but we hold that Special Term’s order should be affirmed. On this appeal, defendant argues that a trial is necessary in this action only to resolve factual issues presented relative to a dispute between the parties over the division of the proceeds from the sale of the marital residence. However, to support this claim he has presented only his attorney’s affidavit wherein it is alleged, “upon information and belief”, that plaintiff received more than her proportionate share of the proceeds of the sale. Such an affidavit was clearly insufficient to defeat plaintiff’s motion for summary judgment (Executive Securities Corp. v Gray, 67 AD2d 860) and,. consequently, the motion was properly granted by Special Term. Order affirmed, with costs. Main, J. P., Casey, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.