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Laura Iannone, Appellant
v
Domenic Iannone et al., Respondents


Supreme Court of New York Second Department

July 25, 2006


Iannone v. Iannone.

31 A.D.3d 713, 820 N.Y.S.2d 86

         Santo Alessi, Deer Park, N.Y., for appellant.


         Edward J. DiNunzio, Port Jefferson, N.Y., for respondents.


         In an action for a divorce and ancillary relief, the wife appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Suffolk County (Bivona, J.), dated July 13, 2005, which, inter alia, (a) granted those branches of her motion which were for pendente lite maintenance and forensic accountant fees only to the extent of awarding her the sums of $350 per week for pendente lite maintenance and $2,500 for forensic accountant fees, (b) denied those branches of her motion which were for exclusive occupancy of the marital residence, an interim attorney's fee, the appointment of a receiver, and to direct the husband to maintain a life insurance policy for her benefit, and (c) granted the defendants' cross motion for leave to amend and supplement their answer pursuant to CPLR 3025(b).


         ORDERED that the order is modified, on the facts, by deleting the provision thereof denying that branch of the motion which was to direct the husband to maintain a life insurance policy for the wife's benefit and substituting therefor a provision granting that branch of the motion only to the extent of directing the husband to continue, pendente lite, any life insurance policies for the wife's benefit existing at the time this action for a divorce and ancillary relief was commenced; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.


         The wife's contention that the Supreme Court's pendente lite award of maintenance was inadequate is without merit (see Levakis v Levakis, 7 A.D.3d 678 [2004]; Schneider v Schneider, 264 A.D.2d 728, 729 [1999]). The purpose of a pendente lite award is to "tide over the more needy party, not to determine the correct ultimate distribution" (Jordan v Jordan, 2 A.D.3d 687, 688 [2003]; see Yecies v Yecies, 108 A.D.2d 813, 814 [1985]), and to "ensure that a needy spouse is provided with funds for his or her support and reasonable needs" (Pascale v Pascale, 226 A.D.2d 439, 440 [1996]). Here, in awarding the wife temporary maintenance in the sum of $350 per week, the Supreme Court considered that the husband has been paying all the carrying charges on the marital residence, including real estate taxes, homeowners insurance, and cable and lawn care expenses. Additionally, the husband was directed to maintain medical, hospital, pharmaceutical, and dental insurance for the wife, and to pay 100% of the reasonable uncovered medical, hospital, dental, and pharmaceutical expenses incurred by her. The husband also was directed to pay all costs related to the 2002 Lincoln automobile, pendente lite, except for gasoline.


         Under these circumstances, the temporary maintenance award was sufficient to meet the reasonable needs of the wife during the pendency of this action (see Cooper v Cooper, 7 A.D.3d 746, 747 [2004]; Pascale v Pascale, 226 A.D.2d 439, 440 [1996]; O'Connor v O'Connor, 207 A.D.2d 334 [1994]).


         Exclusive occupancy of the marital residence may be awarded upon a showing that a spouse's presence has caused domestic strife and that spouse has voluntarily established an alternative residence (see Kristiansen v Kristiansen, 144 A.D.2d 441 [1988]; Wolfe v Wolfe, 111 A.D.2d 809 [1985]). The wife's allegations were insufficient to establish her right to temporary exclusive occupancy (see Matter of Biggio v Biggio, 7 A.D.3d 521, 522 [2004]; Preston v Preston, 147 A.D.2d 464, 465 [1989]; Waldeck v Waldeck, 138 A.D.2d 373 [1988]).


         Contrary to the wife's contention, the Supreme Court providently exercised its discretion in denying that branch of her motion which was for an award of an attorney's fee (see Domestic Relations Law 237 [a]; Vogel v Vogel, 12 A.D.3d 592 [2004]; York v York, 300 A.D.2d 475, 476 [2002]). Furthermore, the court providently exercised its discretion in awarding the wife forensic accountant fees at an amount which was substantially reduced from what she requested (see Ahern v Ahern, 94 A.D.2d 53 [1983]; see also Klisivitch v Klisivitch, 291 A.D.2d 433, 434 [2002]).


         The appointment of a receiver is an extreme remedy that may only be invoked upon a clear showing of the necessity for conservation of the property and the interests of the movant (see DaSilva v DaSilva, 225 A.D.2d 513 [1996]; Adinolfi v Adinolfi, 168 A.D.2d 401, 402 [1990]). Such showing has not been made in the case at bar. The wife's conclusory allegations that the husband was dissipating rental income from properties subject to equitable distribution were insufficient to require the appointment of a receiver (see Serdaroglu v Serdaroglu, 209 A.D.2d 606, 608 [1994]; Polito v Polito, 168 A.D.2d 440 [1990]; Modern Collection Assoc. v Capital Group, 140 A.D.2d 594 [1988]). Moreover, there is no indication in the record that the husband has a history of failing to comply with the payment of maintenance and fees (cf. Rogers v Rogers, 190 A.D.2d 720, 721 [1993]; Rose v Rose, 138 A.D.2d 475, 477 [1988]).


         While leave to amend a pleading should be freely given (see CPLR 3025 [b]), the decision as to whether to grant such leave is generally left to the sound discretion of the trial court (see Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957, 959 [1983]; Dinsenbacher v Dowis, 5 A.D.3d 347 [2004]; M. Kramer & Sons v Facilities Dev. Corp., 135 A.D.2d 942 [1987]), and its determination will not lightly be set aside (see Beuschel v Malm, 114 A.D.2d 569 [1985]). The Supreme Court providently exercised its discretion in granting the defendants' cross motion, as there was neither an inordinate delay in cross-moving for leave to amend and supplement the answer nor a showing of significant prejudice to the wife (see Edenwald Contr. Co. v City of New York, supra; Guiliano v Carlisle, 296 A.D.2d 438, 439 [2002]; Hopper v Hise, 131 A.D.2d 814, 815 [1987]; see also DeBell v Cousins, Inc., 302 A.D.2d 988, 989 [2003]). Moreover, it cannot be said that the proposed amendment was palpably insufficient or patently devoid of merit (see CPLR 3025 [b]; Levine v Levine, 286 A.D.2d 423 [2001]; Noanjo Clothing v L & M Kids Fashion, 207 A.D.2d 436, 437 [1994])


         However, the Supreme Court should have granted that branch of the motion which was to direct the husband to secure his obligation to provide pendente lite maintenance, but only to the extent of directing him to maintain any life insurance policies for the wife's benefit existing at the time this action was commenced (see Lee v Lee, 18 A.D.3d 508, 512 [2005]; Comstock v Comstock, 1 A.D.3d 307, 308 [2003]; Koeth v Koeth, 309 A.D.2d 786, 787 [2003]).


         SANTUCCI, J.P., KRAUSMAN, MASTRO and SKELOS, JJ., concur.



The case of A.C. v. D.R.C. is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as A.C. v. D.R.C. 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. A.C.  v. D.R.C. 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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