Jancu v. Jancu

Appellate Division of the Supreme Court of New York

Jancu v. Jancu

241 A.D.2d 316, 660 N.Y.S.2d 10, 1997 N.Y. App. Div. LEXIS 7029

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

DecidedJuly 1, 1997

StatusPublished

Cited by9 cases

This text of 241 A.D.2d 316 (Jancu v. Jancu) 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

Jancu v. Jancu, 241 A.D.2d 316, 660 N.Y.S.2d 10, 1997 N.Y. App. Div. LEXIS 7029 (N.Y. Ct. App. 1997).

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Opinion

Order, Supreme Court, New York County (David [317]*317Saxe, J.), entered September 13, 1996, which, inter alia, granted plaintiffs motion and authorized the sale of the parties’ Ventnor, New Jersey, properties, unanimously reversed, on the law, without costs or disbursements, and the motion denied.

As we have had occasion to note on the two prior occasions when this case was before us (174 AD2d 428; 224 AD2d 229), absent the termination of the marital relationship by judgment of divorce, amendment, separation or declaration of nullity, courts do not have the authority to direct, pendente lite, the sale of property owned by the parties as tenants by the entirety. (Kahn v Kahn, 43 NY2d 203; Stewart v Stewart, 118 AD2d 455.) This is so despite a changed circumstance, i.e., the IAS Court’s finding, after the fault phase of the action, that plaintiff was entitled to a divorce. Entry of the judgment, however, has been held in abeyance pending resolution of the financial issues. Any so-called exception to the rule (see, e.g., Cornell v Cornell, 7 NY2d 164; Van Pelt v Van Pelt, 172 AD2d 659; Jayson v Jayson, 54 AD2d 687), as argued by plaintiff, is not applicable in the circumstances presented.

The IAS Court was not without a remedy to accomodate a sale. It could have, for instance, directed the entry of an interlocutory judgment of divorce. Concur—Sullivan, J. P., Rosenberger, Wallach, Rubin and Tom, JJ.

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Order, Supreme Court, New York County (David [317]*317Saxe, J.), entered September 13, 1996, which, inter alia, granted plaintiffs motion and authorized the sale of the parties’ Ventnor, New Jersey, properties, unanimously reversed, on the law, without costs or disbursements, and the motion denied.

As we have had occasion to note on the two prior occasions when this case was before us (174 AD2d 428; 224 AD2d 229), absent the termination of the marital relationship by judgment of divorce, amendment, separation or declaration of nullity, courts do not have the authority to direct, pendente lite, the sale of property owned by the parties as tenants by the entirety. (Kahn v Kahn, 43 NY2d 203; Stewart v Stewart, 118 AD2d 455.) This is so despite a changed circumstance, i.e., the IAS Court’s finding, after the fault phase of the action, that plaintiff was entitled to a divorce. Entry of the judgment, however, has been held in abeyance pending resolution of the financial issues. Any so-called exception to the rule (see, e.g., Cornell v Cornell, 7 NY2d 164; Van Pelt v Van Pelt, 172 AD2d 659; Jayson v Jayson, 54 AD2d 687), as argued by plaintiff, is not applicable in the circumstances presented.

The IAS Court was not without a remedy to accomodate a sale. It could have, for instance, directed the entry of an interlocutory judgment of divorce. Concur—Sullivan, J. P., Rosenberger, Wallach, Rubin and Tom, JJ.

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Bluebook (online)

241 A.D.2d 316, 660 N.Y.S.2d 10, 1997 N.Y. App. Div. LEXIS 7029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jancu-v-jancu-nyappdiv-1997.

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