Lead Opinion
— In a matrimonial action in which the defendant had previously been granted a judgment of divorce, defendant appeals from an order of the Supreme Court, Nassau County, dated November T, 1978 which (1) granted the plaintiffs motion to annul the provision in the judgment of divorce requiring the payment of alimony, (2) terminated the alimony payments, and (3) failed to grant her cross motion, inter alia, for a judgment for arrears in alimony. Order reversed, on the facts, with costs, plaintiffs motion is denied and the matter is remanded to Special Term for a determination of the defendant’s cross motion. The plaintiff failed to prove by a preponderance of the evidence that the defendant was habitually living with another man, within the meaning of section 248 of the Domestic Relations Law and that she held
Dissenting Opinion
dissents and votes to affirm the order on the opinion of Mr. Justice Mclnerney at Special Term.