Summary
stating "the court should not have deemed plaintiff's opposition papers a cross-motion, since defendant had every right to rely upon plaintiff's representation that a formal cross-motion would be made and the inference that the subsequent failure to make the cross-motion was an intentional abandonment"
Summary of this case from Juma Tech. Corp. v. ServidioOpinion
June 13, 1991
Appeal from the Supreme Court, New York County (Walter M. Shackman, J.).
Defendant contends that the court's pendente lite award of maintenance is inadequate and should be modified to direct the plaintiff to pay all income taxes imposed by virtue of the award. She furthermore seeks an increase in the pendente lite award of counsel fees to $75,000. Finding no abuse of discretion in the court's issuance of the foregoing relief, we decline to grant defendant's requests. Any inequity should be remedied by a speedy trial, where the true facts concerning the finances and standard of living of the parties can more accurately be ascertained (Sayer v Sayer, 130 A.D.2d 407).
However, the provision in the court's order directing the pendente lite sale of the parties' two homes in New Jersey must be deleted since it contravenes the rule that courts do not have authority to direct the pendente lite sale of property owned by parties as tenants by the entirety absent a judgment of divorce, separation, or annulment (Kahn v Kahn, 43 N.Y.2d 203; Stewart v Stewart, 118 A.D.2d 455). In any case, the court should not have deemed plaintiff's opposition papers a cross-motion, since defendant had every right to rely upon plaintiff's representation that a formal cross-motion would be made and the inference that the subsequent failure to make the cross-motion was an intentional abandonment.
Concur — Sullivan, J.P., Carro, Rosenberger, Asch and Kassal, JJ.