Tessitore v. Tessitore

The parties were married January 22, 1972 and have one minor son. Plaintiff first sued for a divorce and defendant counterclaimed for divorce. Plaintiff then moved for an order granting her temporary custody of the minor child along with exclusive use and occupancy of the marital residence pending the litigation. Plaintiff submitted her affidavit and that of a practicing clinical psychologist who had been treating plaintiff and the child for about one year prior to this motion. Defendant submitted his affidavit and a supplemental affidavit in opposition to the motion. Supreme Court denied the motion without a hearing and this appeal ensued.

There should be an affirmance. Generally, "exclusive possession of the marital home, pendente lite, should not be ordered prior to a hearing unless there is a showing that such possession is necessary to protect the safety of persons and property” (Vallet v Vallet, 86 AD2d 741). We cannot say that, on the evidence presented, Supreme Court abused its discretion in denying plaintiff’s motion. There is insufficient evidence to show that defendant committed or threatened to commit any acts of violence against plaintiff or their minor child which would require an order granting plaintiff exclusive possession *787and use of the marital home to protect the safety of plaintiff or the minor child (cf., Delli Venneri v Delli Venneri, 12Ó AD2d 238). The facts present in the Delli Venneri case (IV2year absence of the husband from the marital abode, a one-bedroom apartment, threats of harm to the wife and a violent entry into the apartment accompanied by a lockout of the wife) are not present here.

Order affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Mikoll, JJ., concur.