
    Sydelle B. Kwaitt, Formerly Known as Sydelle B. Breslaw, Plaintiff, v. Martin J. Breslaw, Defendant.
    Supreme Court, Special Term, New York County,
    June 16, 1961.
    
      Davidson, Cohen <& Zelkin for plaintiff. Kaplan S Kilsheimer {James B. Kilsheimer, III, of counsel), for defendant.
   Edgar J. Nathan, Jr., J.

This motion for summary judgment is granted.

Plaintiff brings this action to recover arrears due for the support of the child of the parties under a separation agreement which was subsequently incorporated in a Florida decree of divorce. By its express terms the agreement was to survive any judgment or decree rendered in favor of plaintiff in a subsequent matrimonia 1 action.

Defendant claims as a defense that plaintiff breached the agreement by removing the child from the United States without his consent and further that plaintiff deprived him of visitation rights.

The agreement permitted plaintiff to remove the child from this State and to take up residence outside of the State, in which event different rights of visitation were to be afforded defendant. There is no provision in the agreement making payments for the support of the infant dependent upon enjoyment of visitation rights by the defendant. Furthermore, defendant submits no facts to show the removal was to prevent his visitation rights or that he was actually deprived of visitation during the periods of the child’s absence. Nor is there anything in the record beyond mere assertions to show a breach of the agreement by plaintiff, or even to show a particular instance in which plaintiff deprived defendant of his rights.

: Accordingly plaintiff is entitled to summary judgment especially where, as here, defendant does not dispute the amount due or show any particular period during which his obligation to pay was suspended by virtue of a breach by plaintiff.  