Kayden v. Kayden

• Decision Date: 09 December 1996
• Citation: 650 N.Y.S.2d 790,234 A.D.2d 345
• Parties: Ina C. KAYDEN, Appellant, v. Fred N. KAYDEN, Respondent, et al., Corespondent.
• Court: New York Supreme Court — Appellate Division

Page 790

650 N.Y.S.2d 790

234 A.D.2d 345

Ina C. KAYDEN, Appellant, v. Fred N. KAYDEN, Respondent, et al., Corespondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 9, 1996.

Morrison Cohen Singer & Weinstein, LLP, New York City (Jerome Tarnoff, of counsel), for Appellant.

Before BRACKEN, J.P., and COPERTINO, JOY and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered October 13, 1995, which granted that branch of the defendant husband's motion which was to compel the sale of the marital residence.

ORDERED that the order is reversed, on the law, with costs, and that branch of the defendant husband's motion which was to compel the sale of the marital residence is denied.

We find no merit to the plaintiff wife's contention that the law of the case precluded the Supreme Court from ordering the sale of the marital residence. Although the defendant husband's prior application for the same relief had previously been denied, the subject motion followed a change in the factual circumstances (see, Matter of Dondi v. Jones, 40 N.Y.2d 8, 15, 386 N.Y.S.2d 4, 351 N.E.2d 650).

We conclude, however, that prior to some alteration in the legal relationship between the parties, the Supreme Court was without power, absent the consent of the parties, to direct the sale of the marital residence (see, Kahn v. Kahn, 43 N.Y.2d 203, 209-210, 401 N.Y.S.2d 47, 371 N.E.2d 809; Berk v. Berk, 170 A.D.2d 564, 566 N.Y.S.2d 340; Caprise v. Caprise, 143 A.D.2d 968, 971, 533 N.Y.S.2d 622; Harrilal v. Harrilal, 128 A.D.2d 502, 512 N.Y.S.2d 433).