Allyn v. Allyn , 346 N.Y.S.2d 841 ( 1973 )

In an action to enforce certain rights under a separation agreement and for payments of arrears in support payments thereunder, defendant appeals from an order of the Supreme Court, Rockland County, dated December 4, 1972, which granted summary judgment on plaintiff’s first four causes of action and from the judgment of the same court entered January 8, 1973 upon such order. Appeal from the order dismissed, without costs, as academic, as it was superseded by the judgment here on appeal. Judgment modified, on the law, by denying motion for summary judgment as to the third and fourth causes of action, and, as so modified, judgment affirmed, without costs. There are triable questions of fact raised by the pleadings and the affidavits with reference to the third and fourth causes of action. Where such triable issues exist, it is error to grant summary judgment (Sillman v. Twentieth Century-Fox Film Corp., 3 N" Y 2d 395, 404). Hopkins, Acting P. J., Munder, Latham and Christ, JJ., concur; Benjamin, J., concurs as to the dismissal of the appeal from the order and as to the affirmance on the granting of summary judgment on the first two causes of action, but dissents and votes to affirm as to the granting of summary judgment on the third and fourth causes of action.