Opinion
November 20, 1978
Motion by appellant, inter alia, for reargument of an appeal from an order of the Supreme Court, Queens County, entered May 20, 1977, which was affirmed by order of this court dated September 25, 1978. Motion denied. On the court's own motion, the order and decision of this court, both dated September 25, 1978 [ 64 A.D.2d 1036], are vacated and recalled, and the following substituted decision is rendered: In an action in which a judgment of the Supreme Court, Queens County, was entered on November 20, 1975, granting plaintiff a divorce and awarding her exclusive possession of the "marital abode", defendant appeals from an order of the same court, entered May 20, 1977, which denied his motion to modify the judgment to require partition of the house (the parties had resided in a six-room apartment therein, one of three apartments in the house). Order reversed, on the law, without costs or disbursements, motion granted to the extent of directing that the property be partitioned and sold, and action remitted to Special Term for reconsideration of the amount of alimony and other equities, if any, existing between the parties, and for further proceedings not inconsistent herewith. Until the house is sold, the present provisions in the judgment as to alimony shall be continued. The division of the proceeds of the sale, and an adjustment of the equities between the parties and of the alimony, may be made at Special Term in the light of this determination. Under the circumstances of the childless marriage of the parties, the denial of partition was an improvident exercise of discretion. Smaller living quarters can adequately accommodate plaintiff living alone. (See Sarmiento v Sarmiento, 43 A.D.2d 867; Parlato v Parlato, 44 A.D.2d 720; Ripp v Ripp, 38 A.D.2d 65, affd 32 N.Y.2d 755.) Latham, J.P., Damiani, Titone and Suozzi, JJ., concur.