Forde v. Forde

Jun 17, 1976
Versions:53 A.D.2d 779
384 N.Y.S.2d 547
1976 N.Y. App. Div. LEXIS 13565

Appeal from an order of the Supreme Court at Special Term, entered September 29, 1975 in Warren County, which directed that the causes of action of the plaintiff and defendant for absolute divorce be tried in Warren County, and further directed that the fourth cause of action in the defendant’s counterclaim, which affects title to real property in Nassau County, be severed and transferred to Nassau County for trial. Plaintiff commenced this action for divorce with the venue, based on the residence of the plaintiff, in Warren County (CPLR 503). There is no proof to the contrary in this record. Defendant counterclaimed for divorce and in a separate cause of action sought a judgment that certain real property in Nassau County, held by the instant parties as tenants by the entirety, be the sole property of the defendant. On the basis that such a judgment would affect the title to real property, defendant sought a change of venue of the entire case to Nassau County (CPLR 507). Special Term ordered the respective causes of action of *780the husband and wife for divorce tried in Warren County, severed and transferred the trial of the cause of action affecting title of real property in Nassau County to Nassau County. From that order this appeal ensued. Although the matrimonial cause of action and the real property cause of action could have been tried in the matrimonial proceeding (Domestic Relations Law, § 234), in this instance these apparent statutory conflicts as to the place of trial (CPLR 503, 507) have been resolved by Special Term by severance and change of venue as hereinabove recited. Special Term, under its wide discretion in such matters, may order a separate trial of any claim or issue (CPLR 603). We find no abuse of discretion herein. Order affirmed, with costs. Kane, J. P., Mahoney, Main, Larkin and Herlihy, JJ., concur.