Opinion
September 11, 1975
Appeal from the Monroe Special Term.
Present — Marsh, P.J., Mahoney, Goldman, Del Vecchio and Witmer, JJ.
Order unanimously affirmed, with costs. Memorandum: Although the divorce transformed the tenancy by the entirety in the family residence into a tenancy in common, Special Term's interpretation of the divorce decree and the separation agreement incorporated therein as granting the wife possession and use of the home as part of her support is reasonable. This partition action, therefore, constitutes a collateral attack upon the divorce decree. We affirm without prejudice to appellant's institution of proceedings, if so advised, for modification of the agreement and divorce decree to eliminate respondent's apparent right to retain possession and use of the residence (Ripp v Ripp, 38 A.D.2d 65, affd on opn at App. Div. 32 N.Y.2d 755; Schaerr v Schaerr, 38 A.D.2d 581; Davies v Davies, 65 Misc.2d 480).