De Giarde v. De Giarde

• Citation: 387 N.Y.S.2d 571,54 A.D.2d 628
• Parties: Massimo DE GIARDE, Plaintiff-Respondent, v. Virginia DE GIARDE, Defendant-Appellant.
• Decision Date: 07 October 1976
• Court: New York Supreme Court Appellate Division

Page 571

387 N.Y.S.2d 571

54 A.D.2d 628

Massimo DE GIARDE, Plaintiff-Respondent, v. Virginia DE GIARDE, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 7, 1976.

R. M. Cohn, New York City, for plaintiff-respondent.

L. C. Fink, New York City, for defendant-appellant.

Before MURPHY, J.P., and LUPIANO, BIRNS, SILVERMAN and NUNEZ, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered April 22, 1976, granting plaintiff's motion declaring him to be the sole, exclusive owner of an airplane and directing defendant to return said airplane to plaintiff, unanimously reversed, on the law without costs and disbursements, and the matter remanded for a plenary hearing; the stay of transfer presently in effect to continue until the issue is determined by the trial court.

The Supreme Court possessed jurisdiction to entertain plaintiff's motion for a declaration that he is the owner of certain personal property, even though a final judgment of divorce had been entered in this action. Domestic Relations Law § 234 provides, Inter alia, that in an action for divorce, the court may determine any question as to the title to property arising between the parties; such direction being permitted to be made '. . . subsequent to final judgment . . ..' However, in view of the parties' contrapositive assertion of ownership of the personal property, to wit, an airplane, the matter should not have been disposed of summarily without a plenary hearing (See Zeeve v. Zeeve, 44 A.D.2d 838, 355 N.Y.S.2d 472 (2nd Dept., 1974)).