Opinion
February 1, 1988
Appeal from the Supreme Court, Westchester County (Nastasi, J.).
Ordered that the order, as amended, is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination in accordance herewith.
We agree with the plaintiff's contention that since he asserted as a defense that he was financially unable to comply with the pendente lite orders, he was entitled to a hearing (see, Domestic Relations Law § 246). Therefore, the Supreme Court erred in not holding a hearing before it adjudged him to be in contempt (see, Rogers v Rogers, 94 A.D.2d 764, lv denied sub nom. Elizabeth R. v John R., 63 N.Y.2d 604; Pirrotta v Pirrotta, 42 A.D.2d 715).
We also find that the Supreme Court erred in summarily denying the plaintiff's cross motion for modification of the pendente lite order (see, De Paolo v De Paolo, 104 A.D.2d 631). Since this issue is inextricably involved with the issue of contempt, both issues should be determined after a full evidentiary hearing (see, Ciaschi v Ciaschi, 49 A.D.2d 991).
Finally, while the defendant was entitled to an award of counsel fees (see, Domestic Relations Law § 237 [c]), we find that, under the circumstances, the making of the award on the basis of affirmations alone was improper (see, Price v Price, 115 A.D.2d 530). Mangano, J.P., Brown, Rubin and Harwood, JJ., concur.