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eBook details

• Title: Micheline Lerner v. Alan J. Lerner
• Author : Supreme Court of New York
• Release Date : January 02, 1964
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

Order, entered on May 20, 1964, granting to plaintiff the exclusive possession of the marital home and awarding custody of the infant son to the wife pending determination of the plaintiff's separation action, with specified visitation rights to the defendant, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent that the portion of the plaintiff's motion for an order granting to her the exclusive possession of the marital home is denied, and it is ordered that the possession of the marital home be restored to the defendant, such direction to be stayed until Special Term fixes the level of support to which the plaintiff is entitled for living and housing expenses, but in no event is the stay to continue for more than 30 days from the date hereof, and as so modified, is otherwise affirmed, without costs. Plaintiff commenced an action for separation on May 14, 1964 and on May 20, 1964 Special Term awarded to the plaintiff exclusive possession of the five-story town house residence located at 42 East 71st Street, New York City where the parties had previously resided as husband and wife. The defendant husband is the sole owner of the town house. The defendant contends on this appeal that, as sole owner of the house, his rights are violated by the order of exclusion and further that the court abused its authority by granting exclusive possession to the plaintiff without affording the defendant an opportunity to be heard. Section 234 of the Domestic Relations Law provides as follows: ""In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties."" In the case of Rosenstiel v. Rosenstiel (20 A.D.2d 71) this court determined that where a matrimonial action is pending between the husband and wife a proceeding under sections 234 and 236 of the Domestic Relations Law is the proper

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