Opinion
May 24, 1999
Appeal from the Supreme Court, Nassau County (Dunne, J.).
Ordered that the notice of cross appeal is treated as an application for leave to appeal, and leave to appeal is granted ( see, CPLR 5701 [c]); and it is further,
Ordered that the order is modified by deleting the provision thereof directing a hearing to aid in the determination of the plaintiff's motion to terminate the payment of maintenance and arrears, and substituting therefor a provision granting the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the amount of counsel fees to be awarded to the plaintiff.
The defendant contends that the plaintiff failed to demonstrate that she forfeited her right to maintenance under the stipulation of settlement because she established a residence with an adult male to whom she was not married or related by blood or marriage for a period of six consecutive months, or for a cumulative period of nine months in a consecutive twelve-month period. We disagree. "It is well settled that the parties to a matrimonial agreement may condition a husband's obligation to support his wife solely on her refraining from living with another man without the necessity of the husband also proving that she habitually holds herself out as the other man's wife as Domestic Relations Law § 248 requires" (Pesa v. Pesa, 230 A.D.2d 837; see, Scharnweber v. Scharnweber, 65 N.Y.2d 1016). Upon our review of the record, we find that there was sufficient evidence demonstrating that the defendant resided with an unrelated male for either of the requisite periods set forth in the stipulation of settlement. Accordingly, there is no need for a hearing to aid in the determination of the plaintiff's motion.
The plaintiff paid $59,200 in maintenance after making his motion. Therefore, since "[h]e is entitled to recoup this payment by a credit offsetting any arrears" ( Grossman v. Merke-Grossman, 248 A.D.2d 670, 671), and since it is undisputed that as of the date of the hearing arrears totaled only $28,300, the payment of arrears in maintenance is also terminated.
Pursuant to paragraph 22.4 of the agreement of the parties dated June 20, 1985, the party who prevails in litigation to enforce the agreement shall be entitled to recover reasonable attorney's fees from the other party. Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine the appropriate amount of counsel fees to be awarded to the plaintiff.
The defendant's, remaining contentions are without merit.
O'Brien, J. P., Goldstein, Luciano and Schmidt, JJ., concur.