Opinion
October 16, 1975
Order, Supreme Court, New York County, entered May 7, 1975, denying plaintiff's motion for support pendente lite and counsel fees unanimously affirmed. Respondents shall recover of appellant $40 costs and disbursements of this appeal. As stated by Special Term, the action herein is nonmatrimonial in nature (see Johnson v Johnson, 206 N.Y. 561; Riemer v Riemer, 31 A.D.2d 482) and accordingly, sections 236 Dom. Rel. and 237 Dom. Rel. of the Domestic Relations Law are not applicable to this action. Moreover, while the Supreme Court has jurisdiction to award support separate and apart from a matrimonial action (Kagen v Kagen, 21 N.Y.2d 532; Levy v Levy, 46 A.D.2d 876; Family Ct. Act, art 4, §§ 411, 412, 442), and to grant temporary support in such action (Levy v Levy, supra; Family Ct. Act, § 434), support may not be granted in this case since the parties are not presently husband and wife — an outstanding bilateral divorce decree admittedly being in effect. Nor do the circumstances herein come within the case of McMains v McMains ( 15 N.Y.2d 283), where the Court of Appeals under limited circumstances permitted the modification of a divorce decree insofar as alimony was concerned despite the fact that the parties had entered into a separation agreement, subsequently incorporated into the divorce decree.
Concur — Stevens, P.J., Kupferman, Murphy, Tilzer and Nunez, JJ.