Sarmiento v. Sarmiento

43 A.D.2d 867, 351 N.Y.S.2d 724, 1974 N.Y. App. Div. LEXIS 5877

Opinion

In an action in which a judgment of the Supreme Court, Nassau County, was entered on March 22, 1973, granting plaintiff a divorce, defendant appeals from an order of the same court dated July 19, 1973, which denied his motion to modify the judgment to require partition of the marital domicile, a seven-room house with two baths, exclusive possession of which had been awarded by the judgment to plaintiff. Order reversed, without costs; motion granted to the extent of directing that the property be partitioned; and matter remitted to Special Term for reconsideration of the amount of alimony and for further proceedings not inconsistent herewith. Under the circumstances of the childless marriage of the parties, the denial of partition was an improvident exercise of discretion. Smaller living quarters can adequately accommodate plaintiff living alone. An equitable adjustment of alimony may be made at Special Term in the light of this determination, if required. Gulotta, P. J., Martuscello, Latham, Benjamin and Munder, JJ., concur.