Falzone v. Falzone

86 A.D.2d 540, 445 N.Y.S.2d 996, 1982 N.Y. App. Div. LEXIS 15055

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1982
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Di Fede, J.), entered March 26, 1981, unanimously modified, in the exercise of discretion, to strike that portion thereof awarding plaintiff-respondent sole and exclusive possession of the former family home, and otherwise affirmed, without costs. By virtue of a separation agreement, title to the house was conveyed to defendant husband. Thereafter, the plaintiff wife, claiming fraud by the husband and the lawyer who had represented both of them in drawing the agreement, commenced this action for divorce and rescission, moving for exclusive possession of the house and an injunction pendente lite against alienation of all the property turned over to the husband. The motion was granted in its entirety. The husband had been living in the house since the separation, whereas the wife, independently employed and self-supporting, had her own separate abode. In view of the injunction, the house will be safe from alienation even if the husband lives there. The wife being amply protected pending outcome of the litigation, we consider that portion of the order granting exclusive possession to have been improvident. Concur — Ross, J. P., Markewich, Lupiano and Bloom, JJ.