Malamut v. Malamut (210 A.D.2d 382, 1994)

—In a matrimonial action in which the parties were divorced by a judgment dated April 3, 1986, the defendant former husband appeals from an order of the Supreme Court, Nassau County (O’Brien, J.), dated January 26,1993, which, inter alia, denied, without a hearing, that branch of his motion which was for a downward modification of his $3,600 monthly maintenance obligation.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and new determination.

It is well settled that a hearing is warranted on the issue of whether there has been a "substantial change in circumstances” (Domestic Relations Law § 236 [B] [9] [b]), where the parties’ affidavits disclose the existence of genuine questions of fact (see, Wyser-Pratte v Wyser-Pratte, 66 NY2d 715; Schnoor v Schnoor, 189 AD2d 809, 810). Here, the conflicting affidavits raise questions as to the plaintiff’s ability to be self-supporting. We therefore remit the matter to the Supreme Court, Nassau County, for a hearing. Sullivan, J. P., Lawrence, Ritter and Joy, JJ., concur.