Opinion
September 30, 1994
Appeal from the Supreme Court, Oneida County, Shaheen, J.
Present — Green, J.P., Balio, Wesley, Callahan and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Where, as here, affidavits submitted by the parties contained factual allegations that were sharply disputed, it was error for Supreme Court to alter the existing custodial situation and to limit visitation without conducting a full evidentiary hearing (see, Tacconi v. Tacconi, 197 A.D.2d 929; Matter of Amy W., 122 A.D.2d 592). We vacate the custody and visitation provisions of Supreme Court's order and remit those issues for an immediate hearing.
Supreme Court properly awarded temporary exclusive possession of the marital residence to plaintiff. Plaintiff's allegations of physical violence, though controverted by defendant, were sufficiently corroborated by non-party affidavits to justify the court's summary award of possession (see, De Millio v. De Millio, 106 A.D.2d 424; cf., Preston v. Preston, 147 A.D.2d 464, 465; Waldeck v. Waldeck, 138 A.D.2d 373).
Defendant failed to preserve for review his contention that plaintiff did not submit sufficient proof on her pendente lite application to show that the cause of action for divorce could be established (see, Oram v. Capone, 206 A.D.2d 839). In any event, that contention and defendant's remaining contentions lack merit.