Edib v. Edib

63 A.D.2d 643, 404 N.Y.S.2d 375, 1978 N.Y. App. Div. LEXIS 11507

Opinion

In a matrimonial action in which plaintiff was previously granted a judgment of divorce, she appeals from an order of the Supreme Court, Dutchess County, dated April 7, 1977, which denied her motion to (1) strike that part of the judgment of divorce which, pursuant to the terms of a stipulation, restricts the sale of the former marital residence by her until June 5, 1988 and (2) declare that the restriction is extinguished and unenforceable. Order reversed, on the law, without costs or disbursements, application granted, and the restriction is declared void and unenforceable. The defendant transferred his interest in the marital residence to the plaintiff pursuant to the separation agreement between the parties. Under a later stipulation, the plaintiff agreed not to sell the property until June 5, 1988. That personal convenant was incorporated, but not merged, into the judgment of divorce and recorded on the face of the deed. When financial difficulties subsequently arose between the parties, the plaintiff sought relief from the restriction. The covenant against sale of the plaintiffs property is illegal as violative of the common-law rule against the direct restraint of alienation and is therefore void (see Wiesenthal v Young, 280 App Div 590). Mollen, P. J., Hopkins, Titone and Shapiro, JJ., concur; Hawkins, J., not voting.