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Ross Adamo, respondent,
v.
 Janet Adamo, appellant.


Supreme Court of New York
Appellate Division, Second Department

18 A.D.3d 407


October 19, 2004, Argued
May 2, 2005, Decided


Adamo v. Adamo

18 A.D.3d 407; 794 N.Y.S.2d 413


COUNSEL: J. Bennett Farrell, Monroe, N.Y., for appellant.


Levinson, Reineke & Ornstein, P.C., Central Valley, N.Y. (David L. Levinson of counsel), for respondent.


JUDGES: PRUDENTI, P.J., H. MILLER, RITTER, and SPOLZINO, JJ., concur.


DECISION & ORDER


 In an action for a divorce and ancillary relief, the defendant appeals(1)from an order of the Supreme Court, Orange County (Slobod, J.), dated July 9,2003, which granted that branch of the plaintiff's motion which was to modify those provisions of an order of the same court dated November 3, 2000, awarding the defendant exclusive use and occupancy of the marital home, to the extent of directing its sale and (2), as limited by her brief, from so much of an order of the same court dated December 17, 2003, as, upon reargument, adhered to the original determination.


 ORDERED that the appeal from the order dated July 9, 2003, is dismissed, as that order was superseded by the order dated December 17, 2003, made upon reargument; and it is further,


 ORDERED that the order dated December 17, 2003, is reversed insofar as appealed from, on the law, upon reargument, the branch of the plaintiff's motion which was to modify those provisions of the order dated November 3, 2000, awarding the defendant exclusive use and occupancy of the marital home to the extent of directing its sale is denied, and the order dated July 9, 2003, is vacated; and it is further,


 ORDERED that one bill of costs is awarded to the defendant.


 It is well settled that before some alteration in the marital relationship, courts lack the authority, absent the consent of the parties, to direct the sale of the marital residence owned by the parties as tenants by the entirety (see Kahn v Kahn, 43 N.Y.2d 203, 371 N.E.2d 809, 401 N.Y.S.2d 47; Harrington v McManus, 303 A.D.2d 368, 755 N.Y.S.2d 661; Kayden v Kayden, 234 A.D.2d 345, 650 N.Y.S.2d 790). Here, although the Supreme Court rendered a decision and order in November 2000 which addressed the various issues between the parties, the record indicates that it was not reduced to a judgment. In the absence of a judgment of divorce, the Supreme Court was without authority to direct the sale of the marital residence (see Jancu v Jancu, 241 A.D.2d 316, 660 N.Y.S.2d 10; Kayden v Kayden, supra).


 PRUDENTI, P.J., H. MILLER, RITTER, and SPOLZINO, JJ., concur.




The case of Adamo v. Adamo is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Adamo may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Adamo v. Adamo is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com



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