Sedgh v. Sedgh

• Decision Date: 21 February 1989
• Citation: 539 N.Y.S.2d 255,142 Misc.2d 931
• Parties: Ester SEDGH, Plaintiff, v. Majid SEDGH, Defendant, and Khanbaba Sedgh, Defendant-Intervenor. /IAS, Part 29
• Court: New York Supreme Court

Page 255

539 N.Y.S.2d 255

142 Misc.2d 931

Ester SEDGH, Plaintiff, v. Majid SEDGH, Defendant and Khanbaba Sedgh, Defendant-Intervenor.

Supreme Court, Nassau County Trial/IAS, Part 29.

Feb. 21, 1989.

Ester Sedgh, pro se.

Majid Sedgh, pro se.

Kane, Kessler, Provjansky, Preiss and Nurnberg, New York City, for defendant-intervenor.

ALLAN L. WINICK, Justice.

In this contested matrimonial, defendant, Majid Sedgh, moves, pendente lite, for an order directing sale of the marital premises, title to which is held by the parties as tenants-by-the-entirety.

At present, these premises are the subject matter of two mortgage foreclosure actions brought by the holders of the mortgage, a bank and a private individual. There are also judgments against the parties which are liens against the premises.

The marital home, at present, houses the wife and the parties' children. Despite the perilous situation facing her, the wife has refused to sell the house, even though the husband has offered her alternative, albeit less comfortable, housing accommodations.

Prior to the enactment of the equitable distribution amendments to the Domestic Relations Law, Section 234 gave the court the right to make directions concerning the possession of property either before or after judgment, and to determine issues of title.

It is well settled, that unless the court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation, or by declaring a void marriage a nullity, it has no authority to order the sale, pendente lite, of a marital residence owned by the parties as tenants-by-the-entirety. Kahn v. Kahn, 43 N.Y.2d 203, 401 N.Y.S.2d 47, 371 N.E.2d 809; Tsakis v. Tsakis, 110 A.D.2d 763, 488 N.Y.S.2d 51; Stugard v. Stugard, 122 Misc.2d 571, 471 N.Y.S.2d 442. Domestic Relations Law § 234 was intended only to be a procedural device to permit a court, in a matrimonial action, to determine questions of possession, Portano v. Portano, 85 A.D.2d 622, 445 N.Y.S.2d 20, arising within the action. Where the court has granted a divorce or has decreed the dissolution, annulment or declaration of nullity of a marriage, that court is empowered to dispose of the property, D.R.L. § 236 B(5)(a), and in addition make such order regarding the use and occupancy of the marital home and its household effects as provided in D.R.L. § 234. See D.R.L. § 236 B(5)(f).

Disposition of the property by sale would thus be authorized only where there is a final judgment granting a divorce, annulment or declaring the nullity of a marriage. No power exists in the court to order disposition of the marital home prior to such time. Kahn v. Kahn, supra.

D.R.L. § 234 does not authorize disposition prior to the severance of the marriage.

A restraint on disposition can be imposed upon a party, pendente lite, Leibowits v. Leibowits, 93 A.D.2d 535, 462 N.Y.S.2d 469, but restraint does not encompass compulsory sale. A court is not empowered, even when it denies the divorce and dismisses the complaint, to order the direct sale of the marital residence held as tenants-by-the-entirety, Tsakis, supra.

This court is aware of a contrary holding in St. Angelo v. St. Angelo, 130 Misc.2d 583, 496 N.Y.S.2d 633, wherein Special Term in Suffolk County, under similar circumstances, directed a sale of the marital home, pendente lite.

However, no specific authority for this result is cited, merely a conclusion based upon the purpose of the equitable distribution statute and also based upon the need to preserve marital assets.

Additionally, the court is aware of the very recent case of Klien v. Klien,...