JACOBS v. JACOBS (1997)

Supreme Court, Appellate Division, Second Department, New York.

William Paul JACOBS, Respondent, v. Eleni JACOBS, Appellant.

Decided: June 09, 1997

Before MANGANO, P.J., and O'BRIEN, RITTER and McGINITY, JJ.

Gary M. Darche, Kew Gardens, for appellant. Risi & Santospirito, Long Island City (John A. Santospirito, of counsel), for respondent.

In a matrimonial action in which the parties were divorced by judgment dated June 21, 1980, the defendant former wife appeals from an order of the Supreme Court, Queens County (Leviss, J.H.O.), dated May 28, 1996, which, after a hearing, inter alia, granted the application of the plaintiff former husband for partition and sale of the former marital residence.

ORDERED that the order is affirmed, with costs.

Contrary to the defendant's contention, the Supreme Court correctly directed the partition and sale of the former marital residence. The application for partition and sale was based on a stipulation between the parties, and the court correctly refused to address, as immaterial, the defendant's equity arguments related to a separate action to recover alimony arrears which was pending in the Supreme Court, Kings County, but had been held in abeyance pending the resolution of the application for partition (see, Jacobs v. Jacobs, 234 A.D.2d 425, 651 N.Y.S.2d 897; Barker and Alexander, Evidence in New York State and Federal Courts § 401.1[a], at 110; CPLR 509; cf., Wolfe v. Wolfe, 187 A.D.2d 628, 590 N.Y.S.2d 504).

MEMORANDUM BY THE COURT.

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