Kent v. Kent , 85 A.D.2d 527 ( 1981 )

Order, Supreme Court, Bronx County (Callahan, J.), dated May 15, 1981, granting plaintiff exclusive possession of the marital abode, is unanimously affirmed, on condition that within 30 days after publication of this decision, plaintiff shall serve and file a note of issue for trial, without prejudice to continuation of disclosure proceedings. If such condition is not timely complied with, the order appealed from is modified, in the exercise of discretion, to the extent of denying plaintiff’s application for exclusive possession, and the order is otherwise affirmed. No costs on appeal are awarded to either party. While plaintiff has probably made an adequate showing for interim exclusive possession, we are disturbed by the delays in this case. The case has already been pending for two years and there is no indication that it is likely to come to trial soon as plaintiff contends that she has been thwarted in her efforts to obtain disclosure. Accordingly, our affirmance is conditioned on plaintiff serving and filing a note of issue for trial within 30 days. The reservation of disclosure rights will enable plaintiff to protect her interests, and, if necessary, at the trial, the court can grant further disclosure with appropriate limited adjournments. Concur — Sandler, J. P., Sullivan, Silverman and Lynch, JJ.