From Casetext: Smarter Legal Research

Gandelman v. Gandelman

Appellate Division of the Supreme Court of New York, Second Department
Oct 12, 1982
90 A.D.2d 494 (N.Y. App. Div. 1982)

Opinion

October 12, 1982


In a matrimonial action, plaintiff appeals from (1) a judgment of the Supreme Court, Queens County (Lerner, J.), dated January 25, 1982, which granted defendant a separation, awarded her exclusive possession of the marital residence and referred the issues of support and custody to the Family Court and (2) an order of the same court, dated December 29, 1981, which denied plaintiff's application to stay enforcement of the award of exclusive occupancy. Judgment modified, as a matter of discretion, by deleting the second decretal paragraph thereof which awarded exclusive occupancy of the marital residence to the defendant. As so modified, judgment affirmed, without costs or disbursements. Appeal from the order dated December 29, 1981 dismissed as academic in light of the above modification, without costs or disbursements. We have repeatedly noted that "the conduct of a trial, including the question of adjournments, is within the sound discretion of the trial court (see Bilyou v State of New York, 33 A.D.2d 604; Matter of Case, 24 A.D.2d 797; Zirn v. Bradley, 270 App. Div. 829; see, also, Balogh v. H.R.B. Caterers, 88 A.D.2d 136)" ( Spodek v. Lasser Stables, 89 A.D.2d 892). Where plaintiff's attorney was advised by the court on the date of the trial that the case would be tried that afternoon and plaintiff's attorney did not have an actual engagement or other excuse for his absence that afternoon, it was not an abuse of discretion for the trial court to refuse substitute counsel's request for an adjournment on behalf of the plaintiff. Although we find that defendant produced sufficient evidence of plaintiff's failure to support her, we hold that on the record before us the award of exclusive possession of the marital abode was an improvident exercise of discretion. The husband is the sole owner of the marital premises and although "the defendant wife has demonstrated a right to * * * support including shelter, no reason is shown why plaintiff should be deprived of his property, or excluded therefrom, or why defendant should have rights in such property greater than any right accorded the owner" ( Dubino v. Dubino, 51 A.D.2d 693; see Weltz v. Weltz, 35 A.D.2d 208; Lerner v. Lerner, 21 A.D.2d 861). Since the Family Court has jurisdiction to award exclusive possession pursuant to the trial court's referral to it of the custody and support issues (see Capelli v. Capelli, 42 A.D.2d 905, 906), an expeditious trial of those matters would best serve the interests of both parties. Titone, J.P., Weinstein, Gulotta and Niehoff, JJ., concur.


Summaries of

Gandelman v. Gandelman

Appellate Division of the Supreme Court of New York, Second Department
Oct 12, 1982
90 A.D.2d 494 (N.Y. App. Div. 1982)
Case details for

Gandelman v. Gandelman

Case Details

Full title:FRED GANDELMAN, Appellant, v. BRENDA GANDELMAN, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 12, 1982

Citations

90 A.D.2d 494 (N.Y. App. Div. 1982)

Citing Cases

Tuscan Realty Corp. v. O'NEILL

ce since the only person sought to be charged under the terms of the lease was tenant (see, General…

Tuscan Realty Corp. v. O'Neill

The DHCR records, sought to be admitted under CPLR 4540, should also have been admitted even if the signature…