Capurso v. Capurso
| Decision Date | 28 April 2009 |
| Docket Number | 2008-09041. |
| Parties | ROBERT CAPURSO, Respondent, v. CHRISTINE CAPURSO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the defendant.
The parties, who purchased the marital residence after their marriage, owned the marital residence as tenants by the entirety (see EPTL 6-2.2 [b]). At the time the Supreme Court decided the plaintiff's original motion, and at the time the Supreme Court decided that branch of the plaintiff's motion which was for leave to renew, the parties' marriage had not been dissolved. "[B]efore some alteration in the marital relationship, courts lack the authority, absent the consent of the parties, to direct the sale of the marital residence owned by the parties as tenants by the entirety" (Adamo v Adamo, 18 AD3d 407, 408 [2005]; see Kahn v Kahn, 43 NY2d 203, 209-210 [1977]; Brevilus v Brevilus, 41 AD3d 630, 631 [2007]; Harrington v McManus, 303 AD2d 368, 369 [2003]; Kayden v Kayden, 234 AD2d 345 [1996]; Walker v Walker, 227 AD2d 469 [1996]). Under these circumstances, the Supreme Court should have denied that branch of the plaintiff's motion which was for leave to renew those branches of his prior motion which were, inter alia, to direct the sale of the marital residence and to be appointed receiver for the purpose of selling...
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