Ganci v. Ganci

92 A.D.2d 881, 460 N.Y.S.2d 93, 1983 N.Y. App. Div. LEXIS 17268

Opinion

—■ In a matrimonial action, the plaintiff wife appeals from an order of the Supreme Court, Suffolk County (Geiler, J.), dated November 6, 1981, which, inter alla, granted defendant’s motion to modify the judgment of divorce by vacating the award of exclusive possession of the marital residence. Order reversed, with $50 costs and disbursements, and matter remitted to the Supreme Court, Suffolk County, for a hearing and new determination, in accordance herewith. On the evidence presented, it was erroneous and an improvident exercise of discretion for Special Term to vacate the provision granting exclusive possession of the marital residence to the plaintiff and to direct a partition and sale of the premises and equal division of the proceeds, without a hearing and inquiry into the equities of defendant’s application and the plaintiff’s right to reimbursement for expenditures made for the house (see Ripp v Ripp, 38 AD2d 65, affd 32 NY2d 755; Doyle v Hamm, 52 AD2d 899). Gibbons, J. P., Weinstein, Bracken and Niehoff, JJ., concur.