Kayden v. Kayden

234 A.D.2d 345, 650 N.Y.S.2d 790, 1996 N.Y. App. Div. LEXIS 12896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1996
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered October 13, 1995, which granted that branch of the defendant husband’s motion which was to compel the sale of the marital residence.

Ordered that the order is reversed, on the law, with costs, and that branch of the defendant husband’s motion which was to compel the sale of the marital residence is denied.

We find no merit to the plaintiff wife’s contention that the law of the case precluded the Supreme Court from ordering the sale of the marital residence. Although the defendant husband’s prior application for the same relief had previously been denied, the subject motion followed a change in the factual circumstances (see, Matter of Dondi v Jones, 40 NY2d 8, 15).

We conclude, however, that prior to some alteration in the legal relationship between the parties, the Supreme Court was without power, absent the consent of the parties, to direct the sale of the marital residence (see, Kahn v Kahn, 43 NY2d 203, 209-210; Berk v Berk, 170 AD2d 564; Caprise v Caprise, 143 AD2d 968, 971; Harrilal v Harrilal, 128 AD2d 502). Bracken, J. P., Copertino, Joy and Altman, JJ., concur.