Gallant v. Gallant

Appellate Division of the Supreme Court of New York

Gallant v. Gallant

197 A.D.2d 422, 602 N.Y.S.2d 599

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 14, 1993

StatusPublished

Cited by1 cases

This text of 197 A.D.2d 422 (Gallant v. Gallant) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gallant v. Gallant, 197 A.D.2d 422, 602 N.Y.S.2d 599 (N.Y. Ct. App. 1993).

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Opinion

—Order, Supreme Court, New York County (Martin B. Stecher, J.), entered February 5, 1993, which, inter alia, granted plaintiff’s motion for a modification of the divorce judgment to the extent of ordering a reference on certain issues pertaining to the status of the former marital residence, unanimously modified on the law and the facts and in the exercise of discretion to the extent of remanding [423]*423the matter for an immediate trial before the IAS Court on the framed issues and, except as thus modified, affirmed without costs or disbursements.

The IAS Court properly ordered a hearing because the question as to whether the defendant mother still resides in the Manhattan apartment is a "sharply controverted” issue of fact that could not have been resolved on the papers (Belle v Chromalloy Am. Corp., 51 AD2d 933). Should it be determined that defendant and the children have effectively abandoned the residence for its intended use under the divorce judgment, the court can determine whether to accelerate the sale of the apartment and what share of the proceeds should be provided to plaintiff (see, Hillmann v Hillmann, 109 AD2d 777, 778). In light of plaintiff’s medical condition and impecunious state, however, the issue should be expeditiously disposed of by the court itself, rather than by a reference with its attendant delay.

We have examined plaintiff’s remaining contention and find it to be without merit. Concur—Sullivan, J. P., Carro, Ellerin and Rubin, JJ.

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—Order, Supreme Court, New York County (Martin B. Stecher, J.), entered February 5, 1993, which, inter alia, granted plaintiff’s motion for a modification of the divorce judgment to the extent of ordering a reference on certain issues pertaining to the status of the former marital residence, unanimously modified on the law and the facts and in the exercise of discretion to the extent of remanding [423]*423the matter for an immediate trial before the IAS Court on the framed issues and, except as thus modified, affirmed without costs or disbursements.

The IAS Court properly ordered a hearing because the question as to whether the defendant mother still resides in the Manhattan apartment is a "sharply controverted” issue of fact that could not have been resolved on the papers (Belle v Chromalloy Am. Corp., 51 AD2d 933). Should it be determined that defendant and the children have effectively abandoned the residence for its intended use under the divorce judgment, the court can determine whether to accelerate the sale of the apartment and what share of the proceeds should be provided to plaintiff (see, Hillmann v Hillmann, 109 AD2d 777, 778). In light of plaintiff’s medical condition and impecunious state, however, the issue should be expeditiously disposed of by the court itself, rather than by a reference with its attendant delay.

We have examined plaintiff’s remaining contention and find it to be without merit. Concur—Sullivan, J. P., Carro, Ellerin and Rubin, JJ.

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Bluebook (online)

197 A.D.2d 422, 602 N.Y.S.2d 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallant-v-gallant-nyappdiv-1993.

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