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Corsell v. Corsell

Appellate Division of the Supreme Court of New York, First Department
Feb 26, 1981
80 A.D.2d 544 (N.Y. App. Div. 1981)

Opinion

February 26, 1981


Order, Supreme Court, New York County, entered June 24, 1980, which granted plaintiff's motion for temporary exclusive possession of the marital home, affirmed, without costs. The only issue of substance on this appeal is the question of the temporary exclusive possession of the marital home pending a trial. As we have many times indicated, the best solution is an expedited trial at which time the court may review all of the evidence and see the witnesses and make a more informed determination. (Johnson v. Johnson, 73 A.D.2d 860; Richter v Richter, 70 A.D.2d 869.) The solution suggested by the dissent would merely postpone reaching the merits.

Concur — Kupferman, J.P., Carro, Lupiano and Fein, JJ.


Justice Martin Evans denied a motion by the plaintiff wife for exclusive possession of the marital premises. Thereafter, feeling that a different state of facts had arisen, the plaintiff renewed her motion for exclusive possession. This motion came before Justice Gomez who granted it. I find this to be in contravention of CPLR 2221 which expressly requires a renewal motion to be referred to the Judge who signed the original order (see, also, Begler v. Saltzman, 53 A.D.2d 578; Rosenstiel v. Rosenstiel, 24 A.D.2d 952; Matter of Fili v. Fili, 27 A.D.2d 908). By its affirmance here the majority seems to suggest that a subsequent motion need not be referred when a different state of facts has arisen since the original motion. If that be the case then I would note that a motion brought about by the arising of a different state of facts is by definition a motion to renew the prior motion (Riggs v. Pursell, 74 N.Y. 370; 2A Weinstein-Korn-Miller, N.Y. Civ Prac, par 2221.03). I would reverse and remand the motion to renew to Justice Evans.


Summaries of

Corsell v. Corsell

Appellate Division of the Supreme Court of New York, First Department
Feb 26, 1981
80 A.D.2d 544 (N.Y. App. Div. 1981)
Case details for

Corsell v. Corsell

Case Details

Full title:THEODORA CORSELL, Respondent, v. PETER CORSELL, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 26, 1981

Citations

80 A.D.2d 544 (N.Y. App. Div. 1981)

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