Siegal v. Siegal , 74 A.D.2d 867 ( 1980 )

In a matrimonial action, the plaintiff husband appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Nassau County, dated October 16, 1979, as awarded the defendant wife exclusive occupancy of the marital residence, pendente lite, and temporary alimony in the amount of $100 per week, and (2) a further order of the same court, dated November 8, 1979, as, upon reargument, adhered to the original determination. Appeal from the order dated October 16, 1979, dismissed as academic, without costs or disbursements. That order was superseded by the order granting reargument. Order dated November 8, 1979 modified by adding thereto, immediately after the provision adhering to the original determination, the following: "except that so much of the prior order as granted the defendant wife exclusive occupancy of the marital premises during the pendency of the action is deleted.” As so modified, said order affirmed insofar as appealed from, without costs or disbursements and without prejudice to either party applying for a trial preference pursuant to 22 NYCRR 785.9. On the basis of the evidence adduced at Special Term, it was an improvident exercise of discretion to award the defendant exclusive occupancy of the marital premises owned by the parties as tenants by the entirety prior to trial and without a hearing (see Scampoli v Scampoli, 37 AD2d 614; cf. Minims v Minnus, 63 AD2d 966). Damiani, J. P., Gulotta, Margett and Weinstein, JJ., concur.