Kilmer v. Kilmer

109 A.D.2d 1004, 486 N.Y.S.2d 483, 1985 N.Y. App. Div. LEXIS 47495

Opinion

Casey, J.

Appeal from an order of the Family Court of Columbia County (Zittell, J.), entered June 5, 1984, which granted plaintiff an order of protection.

The order on appeal here by defendant requires him to remain away from the former marital residence of the parties. The order was entered after a hearing in which it was found that defendant was harassing plaintiff. That finding is supported by sufficient evidence and should, therefore, be affirmed. The chief contention on this appeal seems to be that defendant, as a tenant by the entirety of the property, has a right to be there and that, considering his emphysema and bronchitis condition, he has no other place to go.

Contrary to this contention, defendant’s right to possession is no stronger than plaintiff’s and is dependent on his conduct, which has been found to be annoying and molesting in regard to her. A divorce action is pending between the parties, in which their respective rights in and to the property may be determined. At present, the order of protection issued in favor of plaintiff should be affirmed.

Order affirmed, without costs. Mahoney, P. J., Casey, Mikoll and Yesawich, Jr., JJ., concur.