Rent-Controlled Apartment Cannot Be Distributed In Divorce

06/21/12

On Wednesday, the Appellate Division, Second Department, New York found that a

rent controlled apartment

cannot be distributed in divorce under the provisions of the New York Domestic Relations Law. Justice John Leventhal observed in the instant ruling that, “A leasehold interest in a rental apartment, even one subject to the rent control law, which is not expected to be converted into a form of ownership such as a cooperative, is neither marital nor separate property as defined by the Domestic Relations Law.”

In the instant case, one Frank Cudar began living in the concerned apartment in 1960. Later he married Elizabeth Cudar and the married couple began to live in the apartment from 1969. The couple was divorced in 2006 and the wife continued to live in the apartment while the husband moved out. In 2011, Frank Cudar asked the court to award him sole possession of the apartment by evicting his former wife, claiming that the apartment was his separate property since before the marriage.

The

Domestic Relations Law

requires a court to divide marital assets between spouses in an equitable manner, and to do so the court needs to identify assets which belong to individuals and not part of the marital assets pool, and also to identify the assets which are subject to division and distribution. In the instant case, the Appellate Division, Second Department concluded that the rented apartment could not be categorized as separate property.

All in the last week in the last month in the last 3 months in the last 6 months in the last year

Search Career Advice

Also, in passing their decision, the Appellate Division held that signing a lease for a property does not qualify as an acquisition of property, either before or after marriage. In trying to reach the difficult to understand decision, the court relied on several rulings from the Appellate Division, First department which hold that a rental apartment is not distributable property unless there is an expectation that it will be converted to a condo or a cooperative.

However, the court also observed that while the court could not grant possession of the property to the plaintiff on the cause of action raised by the plaintiff, the Supreme Court was competent to grant the possession of the apartment under the Domestic Relations Law section 234.

• Search Legal Jobs
• Search Articles
• Employer Listing

United States

Search jobs

All in the last week in the last month in the last 3 months in the last 6 months in the last year

Search Career Advice

Select In-House Law Firms Government Recruiters Public Interest

Search Employer

The case has been remanded to Acting Supreme Court Justice Barbara Panepinto in Richmond County to decide who should receive the apartment.

Both sides seemed happy for their own reasons – a rare thing to see.

The attorney of Elizabeth Cudar, Philip Kaplan was satisfied with the court referring the issue of possession back to the trial court.

The attorney of Frank Cudar, Anthony Caronna, said the ruling was a “tremendous victory” for his client.

The case is Cudar v. Cudar, in the Supreme Court of the State of New York,

Appellate Division

, Second Department, No. 2011-03128.