The opinion
Nunez, J. (dissenting).
I would reverse and remand for a plenary trial on the issue of whether defendant, plaintiffs former wife, is openly and habitually living with and being supported by another man. The separation agreement, incorporated in a subsequent divorce decree, provided that alimony would cease upon the wife’s remarriage. Public policy does not allow double support. Section 248 of the Domestic Relations Law, in recognition of such policy, provides that a court may, in its discretion, eliminate provision for alimony "upon proof that the wife is habitually living with another man and holding herself out as his wife”. We should recognize that in this modern day and age relationships akin to that of husband and wife abound.
"To cut off support from a woman who remarries and to allow 'double support’ to a woman who enters into a continuous and open unmarried relationship is to make a distinction based upon 'a title’ rather than on the basic policy dealing with the right to support. The law should not condone a situation in which a divorced wife lives openly with another man, receives support from this other man, and still compels a former husband to support her. A woman who enters into such a relationship can truly be considered as having remarried for purposes of eliminating dual support.” (Levine v Levine, 79 Misc 2d 149, 151 ; see, also, Steinberg v Steinberg, Sup.Ct., Kings County, Special Term, Part 5-B, Sept. 9, 1974.)
Plaintiff has submitted sufficient proof to defeat defendant’s right to summary judgment. He has given the other man’s name, the address where his former wife and the other man are living and the date since when they are holding themselves out as husband and wife.
Markewich, J. P., Murphy and Lane, JJ., concur with Lupiano, J.; Nunez, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on Febru *97 ary 18, 1975, and judgment of said court entered thereon on March 12, 1975, affirmed, without costs and without disbursements.