Nebot v. Nebot

Decision Date18 April 1988
Citation527 N.Y.S.2d 430,139 A.D.2d 635
PartiesWilliam NEBOT, Respondent, v. Elaine NEBOT, Appellant.
CourtNew York Supreme Court — Appellate Division

Alan Bendersky, West Islip, for appellant.

Gary H. Tabat, West Islip, for respondent.

Before BRACKEN, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Abrams, J.), entered May 19, 1987, as denied that branch of her motion which was for a preliminary injunction restraining the plaintiff husband from selling the marital residence.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Domestic Relations Law § 234 specifically empowers the court to determine any question as to the title or possession of property as between the parties in a matrimonial action, either in the final judgment or by one or more orders either prior to or subsequent to the final judgment, as in the court's discretion justice requires having regard to the circumstances of the case and the respective parties. In the instant case, the record belies the defendant's claim that the Supreme Court, Suffolk County, abused its discretion in refusing to enjoin the plaintiff from selling the marital residence prior to a final determination of the parties' matrimonial litigation. The court correctly determined that the subject property is primarily separate property belonging to the plaintiff, inasmuch as it was undisputed that the plaintiff paid for the house out of his own separate money which he acquired prior to the marriage upon the sale of his previous residence (see, Domestic Relations Law § 236[B][1][c], [d] ). The defendant's only claim to the proceeds of the sale of the marital residence lies in the extent to which she may have contributed in part to any appreciation in value of the property ( see, Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684; Nolan v. Nolan, 107 A.D.2d 190, 486 N.Y.S.2d 415). In this regard, her interest has been more than adequately protected by the court's requirement that 50% of the proceeds of the sale be held in escrow pending final determination of the action.

Insofar as the defendant has failed to make any showing that the plaintiff is seeking to dispose of marital assets so as to prejudice her right to equitable distribution ( see, Guttman v....

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7 cases
  • El-Dehdan v. El-Dehdan
    • United States
    • New York Court of Appeals
    • 20 Octubre 2015
    ...to exist by the admission ... that there was a conversion and/or dissipation of marital assets” (citations omitted) ]; Nebot v. Nebot, 139 A.D.2d 635, 527 N.Y.S.2d 430 [2d Dept.1988] [as defendant's only claim to a property purchased with the separate funds of the plaintiff was to any part ......
  • El-Dehdan v. El-Dehdan
    • United States
    • New York Court of Appeals
    • 20 Octubre 2015
    ...to exist by the admission ... that there was a conversion and/or dissipation of marital assets” (citations omitted) ]; Nebot v. Nebot,139 A.D.2d 635, 527 N.Y.S.2d 430 [2d Dept.1988][as defendant's only claim to a property purchased with the separate funds of the plaintiff was to any part of......
  • McCarthy v. McCarthy
    • United States
    • New York Supreme Court Appellate Division
    • 4 Diciembre 1989
    ...since it is clear that the only significant asset within her control (her house) is primarily separate property (see, Nebot v. Nebot, 139 A.D.2d 635, 527 N.Y.S.2d 430). Furthermore, there was no proof, other than wholly conclusory allegations by the plaintiff, that the defendant was in fact......
  • Fakiris v. Fakiris
    • United States
    • New York Supreme Court Appellate Division
    • 12 Noviembre 1991
    ...would prejudice the plaintiff's right to equitable distribution (see, Cohen v. Cohen, 142 A.D.2d 543, 530 N.Y.S.2d 213; Nebot v. Nebot, 139 A.D.2d 635, 527 N.Y.S.2d 430; cf., Rogers v. Rogers, 161 A.D.2d 754, 556 N.Y.S.2d ...
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