Opinion
July 1, 1997
Appeal from the Supreme Court, New York County (David Saxe, J.).
As we have had occasion to note on the two prior occasions when this case was before us ( 174 A.D.2d 428; 224 A.D.2d 229), absent the termination of the marital relationship by judgment of divorce, amendment, separation or declaration of nullity, courts do not have the authority to direct, pendente lite, the sale of property owned by the parties as tenants by the entirety. ( Kahn v. Kahn, 43 N.Y.2d 203; Stewart v. Stewart, 118 A.D.2d 455.) This is so despite a changed circumstance, i.e., the IAS Court's finding, after the fault phase of the action, that plaintiff was entitled to a divorce. Entry of the judgment, however, has been held in abeyance pending resolution of the financial issues. Any so-called exception to the rule ( see, e.g., Cornell v. Cornell, 7 N.Y.2d 164; Van Pelt v. Van Pelt, 172 A.D.2d 659; Jayson v. Jayson, 54 A.D.2d 687), as argued by plaintiff, is not applicable in the circumstances presented.
The IAS Court was not without a remedy to accomodate a sale. It could have, for instance, directed the entry of an interlocutory judgment of divorce.
Concur — Sullivan, J. P., Rosenberger, Wallach, Rubin and Tom, JJ.