Minnus v. Minnus

Decision Date05 June 1978
Citation63 A.D.2d 966,405 N.Y.S.2d 504
PartiesAnn MINNUS, Respondent, v. Herbert MINNUS, Appellant.
CourtNew York Supreme Court — Appellate Division

Goldstein & Goldstein, Brooklyn (Gloria Goldstein, Brooklyn, of counsel), for appellant.

Leonard Siegel, Freeport (Edward R. Siegel, Freeport, of counsel), for respondent.

Before HOPKINS, J. P., and TITONE, GULOTTA and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, dated December 27, 1977, as granted the plaintiff wife's cross motion for exclusive possession of the matrimonial residence and an order of protection directing defendant to cease and desist from physically abusing plaintiff.

Order affirmed insofar as appealed from, with $50 costs and disbursements.

Section 234 of the Domestic Relations Law authorizes the court to make orders concerning possession of the marital residence "as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties". Here, where the wife has uncontested legal title to the house, has made sworn factual allegations of prior incidents of violence and abuse, and has previously obtained a protective order from the Family Court, Special Term acted well within its discretion when it awarded her exclusive possession of the house pending the outcome of the litigation (see Binet v. Binet, 53 A.D.2d 836, 385 N.Y.S.2d 564). The wife has no duty to support her husband if he is not in danger of becoming a public charge (Schuster v. Schuster, 39 A.D.2d 595, 331 N.Y.S.2d 722).

We note that it is essential that applications for exclusive possession of the marital home be supported by affidavits of the spouses applying.

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10 cases
  • Leibowits v. Leibowits
    • United States
    • New York Supreme Court — Appellate Division
    • May 16, 1983
    ...272, affd. 16 N.Y.2d 564, 260 N.Y.S.2d 838, 208 N.E.2d 783), by excluding one spouse from premises occupied by another (Minnus v. Minnus, 63 A.D.2d 966, 405 N.Y.S.2d 504), or by restraining transfers of property pendente lite (Zeeve v. Zeeve, 44 A.D.2d 838, 355 N.Y.S.2d 472; Weaver v. Weave......
  • People v. Simmons
    • United States
    • New York Criminal Court
    • February 8, 2023
    ...not witness testimony. (McKinney's Practice Commentaries, Alan D. Scheinkman, DRL § 252 [online version 2020]; Minnus v. Minnus , 63 A.D.2d 966, 405 N.Y.S.2d 504 [2d Dep't 1978] ). Family Court Act §§ 1027 and 1028 mandate prompt hearings where a child has been removed from a parent's custo......
  • Lidsky v. Lidsky
    • United States
    • New York Supreme Court
    • December 12, 1986
    ...22 AD2d 893 aff'd 16 NY2d 564 [260 N.Y.S.2d 838, 208 N.E.2d 783] ), by excluding one spouse from premises occupied by another (Minnus v Minnus, 63 AD2d 966 ), or by restraining transfers of property pendente lite (Zeeve v Zeeve, 44 AD2d 838 ; Weaver v Weaver, 37 AD2d 614 "The section 234 po......
  • Preston v. Preston
    • United States
    • New York Supreme Court — Appellate Division
    • February 6, 1989
    ...supra ), the existence of a court order of protection (see, DeMillio v. DeMillio, 106 A.D.2d 424, 482 N.Y.S.2d 517; Minnus v. Minnus, 63 A.D.2d 966, 405 N.Y.S.2d 504), uncontroverted medical evidence ( see, King v. King, 109 A.D.2d 779, 486 N.Y.S.2d 291), or corroborative third-party affida......
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