Pascoe v. Pascoe

Appellate Division of the Supreme Court of New York

Pascoe v. Pascoe

309 A.D.2d 1210, 765 N.Y.S.2d 408, 2003 N.Y. App. Div. LEXIS 10096

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

DecidedOctober 2, 2003

StatusPublished

This text of 309 A.D.2d 1210 (Pascoe v. Pascoe) 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

Pascoe v. Pascoe, 309 A.D.2d 1210, 765 N.Y.S.2d 408, 2003 N.Y. App. Div. LEXIS 10096 (N.Y. Ct. App. 2003).

Pincite

Opinion

Appeal from an order of Supreme Court, Niagara County (Boniello, III, J.), entered December 13, 2001, which equitably distributed the parties’ marital property after a hearing.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court (Boniello, III, J.). In addition, we note that the court properly determined that the marital residence was the separate property of defendant and that the interest of plaintiff in the property is limited to her equitable share of any marital funds used to pay the mortgage on the property (see Burgio v Burgio, 278 AD2d 767, 769 [2000]). Here, however, the mortgage was paid from rental income generated by the property (see Pelletier v Pelletier, 242 AD2d 325, 326 [1997], lv denied 91 NY2d 803 [1997]), and thus plaintiff failed to prove that she is entitled to any distribution of the equity in the marital residence, regardless of the amount of that equity. Plaintiff failed to preserve for our review her further contention that she is entitled to the imposition of a constructive trust on defendant’s property and, in any event, that contention lacks merit. Present — Pine, J.P., Hurlbutt, Scudder and Hayes, JJ.

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Appeal from an order of Supreme Court, Niagara County (Boniello, III, J.), entered December 13, 2001, which equitably distributed the parties’ marital property after a hearing.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court (Boniello, III, J.). In addition, we note that the court properly determined that the marital residence was the separate property of defendant and that the interest of plaintiff in the property is limited to her equitable share of any marital funds used to pay the mortgage on the property (see Burgio v Burgio, 278 AD2d 767, 769 [2000]). Here, however, the mortgage was paid from rental income generated by the property (see Pelletier v Pelletier, 242 AD2d 325, 326 [1997], lv denied 91 NY2d 803 [1997]), and thus plaintiff failed to prove that she is entitled to any distribution of the equity in the marital residence, regardless of the amount of that equity. Plaintiff failed to preserve for our review her further contention that she is entitled to the imposition of a constructive trust on defendant’s property and, in any event, that contention lacks merit. Present — Pine, J.P., Hurlbutt, Scudder and Hayes, JJ.

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Bluebook (online)

309 A.D.2d 1210, 765 N.Y.S.2d 408, 2003 N.Y. App. Div. LEXIS 10096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pascoe-v-pascoe-nyappdiv-2003.

Opinion

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