Scampoli v. Scampoli

37 A.D.2d 614, 323 N.Y.S.2d 627, 1971 N.Y. App. Div. LEXIS 3817

Opinion

In an action for separation, defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, entered March 4, 1971, as directed him to pay pendente lite child support of $75 a week and awarded exclusive occupancy of the marital premises to plaintiff. Order modified by deleting therefrom the following decretal provision: “ Plaintiff is awarded exclusive occupancy of the marital residence” and by substituting therefor the following: “Insofar as plaintiff’s motion seeks exclusive occupancy of the marital premises it is denied.” As so modified, order affirmed, without costs. While there is no question that a court is empowered to award exclusive possession of marital premises owned by the parties as tenants by the entirety to one of the parties pendente lite (Domestic Relations Law, § 234), unless there is a showing that such a directive is necessary to protect the safety of persons and property the court should not exercise its authority to apply it (Mayeri v. Mayeri, 26 Misc 2d 6). On the facts adduced at bar it was an improvident exercise of discretion to award plaintiff exclusive possession of the premises prior to a trial and without a hearing (Rowley v. Rowley, 6 A D 2d 1049). Munder, Acting P. J., Martuseello, Latham, Shapiro and Gulotta, JJ., concur.