Scacchetti v. Lonobile

97 A.D.2d 966, 468 N.Y.S.2d 766, 1983 N.Y. App. Div. LEXIS 20794

Opinion

Judgment unanimously modified and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: The Trial Term properly determined that plaintiff was entitled to one half of the fair and reasonable rentals, but such determination should be modified to begin on July 22, 1974, the date of the effective ouster (see Miraldi v Miraldi, 51 AD2d 538; Daigle v Daigle, 73 AD2d 771). The trial court erroneously awarded defendant one half of the mortgage, tax and insurance payments after the ouster on July 22, 1974 (see Worthing v Cossar, 93 AD2d 515; Topilow v Peltz, 25 AD2d 874). The matter should be remitted for the court to make findings and award the defendant one half of such payments made between the divorce and the time of the ouster. The court should also make findings and award defendant one half of the expenditures made on necessary repairs and improvements between the time of the divorce and the commencement of this action (see Worthing v Cossar, supra,). (Appeals from judgment of Supreme Court, Monroe County, Mastrella, J. — partition.) Present — Dillon, P. J., Callahan, Green, O’Donnell and Schnepp, JJ.