Blumenfeld v. Blumenfeld

96 A.D.2d 895, 466 N.Y.S.2d 63, 1983 N.Y. App. Div. LEXIS 19500

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 1983
• Status: Published

Opinion

In an action for divorce, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Robbins, J.), dated April 25, 1983, as granted the motion of the plaintiff wife for exclusive possession of the marital residence and an order of protection, pendente lite. Order modified, by deleting so much thereof as granted the branch of plaintiff’s motion that sought exclusive possession of the marital residence and substituting a provision denying that branch of her motion. As so modified, order affirmed, insofar as appealed from, without costs or disbursements. Absent any showing that a directive was necessary to protect the safety of persons and property, it was an improvident exercise of discretion for Special Term to award plaintiff exclusive possession of the marital residence prior to trial and without a hearing (see Siegal v Siegal, 74 AD2d 867; Scampoli v Scampoli, 37 AD2d 614). There was no evidence that the police had ever been called to intervene. Nor did plaintiff submit any affidavits by third parties to corroborate her allegations of misconduct on the part of defendant (see Minnus v Minnus, 63 AD2d 966; Binet v Binet, 53 AD2d 836). Gibbons, J. P., Thompson, Niehoff and Rubin, JJ., concur.