Bruno v. Bruno ( 1977 )

Order unanimously reversed, without costs, and motion denied. Memorandum: Plaintiffs attorney moved at Special Term for an order reinstating the award of alimony as directed by this court in February, 1976 (see Bruno v Bruno, 51 AD2d 862 mot for lv to app den 39 NY2d 706) and for counsel fees. Subsequent to this court’s order the defendant lost his employment and on application to Special Term he was relieved of the payment of alimony. Additionally, plaintiff has since moved to Arizona and defendant now resides in New York City. It appears that other circumstances of the parties have changed materially since our initial review. Both parties now appeal from Special Term’s order which modified the judgment of divorce to provide that the defendant pay to the plaintiff the sum of $100 per week for her support and pay to plaintiffs attorney the sum of $150 as counsel fees. The plaintiff offered no allegation or assertion in support of her motion. The only affidavits submitted to the court were those of her attorney. The attorney’s assertions are conclusory and constitute unsupported hearsay. It is well settled that an affidavit of an attorney who lacks personal knowledge of the facts has no probative value and should be disregarded (Israelson v Rubin, 20 AD2d 668, affd 14 NY2d 887; Two Clinton Sq. Corp. v Gorin Stores, 51 AD2d 643; Di Sabato v Soffes, 9 AD2d 297). Thus the motion papers were insufficient to support Special Term’s order. We also note that in view of the changed circumstances of the parties, upon an application properly made, the court will be required to conduct a hearing. (Appeals from order of Onondaga Supreme Court— reinstate alimony.) Present—Marsh, P. J., Moule, Dillon, Denman and Witmer, JJ.