Maisto v. Maisto

75 A.D.2d 886, 428 N.Y.S.2d 43, 1980 N.Y. App. Div. LEXIS 11525

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1980
• Status: Published

Opinion

In an action for partition of real property formerly owned by the parties as tenants by the entirety, the defendant appeals from an order of the Supreme Court, Nassau County dated November 20, 1979, which (1) denied her motion for summary judgment upon her counterclaim, and (2) granted, sua sponte, partial summary judgment to the plaintiff dismissing the counterclaim without prejudice to an application by the defendant for a judgment pursuant to section 244 of the Domestic Relations Law. Order modified, on the law, by deleting the provision granting partial summary judgment to the plaintiff dismissing the counterclaim. As so modified, order affirmed, without costs or disbursements. Under the circumstances of this case, Special Term erred in dismissing the defendant’s counterclaim for arrears due under a judgment of divorce. A formal application pursuant to section 244 of the Domestic Relations Law may be dispensed with in appropriate circumstances. (See McDonald v McDonald, 30 AD2d 866.) In the case at bar, the defendant should have been permitted to interpose a counterclaim for arrears in an action brought by her former husband for partition of the marital home. Moreover, we are of the view that there are issues of fact which preclude summary judgment herein. (See Salvati v Salvati, 37 AD2d 858.) Mangano, J. P., Gulotta, Cohalan and Margett, JJ., concur.