Nunes v. Durante ( 1992 )

— Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered October 12, 1990, which referred the issue of the validity of the parties’ 1989 separation agreement to a Special Referee to hear and report with recommendations, held defendant’s motion for partial summary judgment in abeyance and granted exclusive occupancy of the marital apartment pendente lite to defendant, unanimously modified, on the law and the facts and in the exercise of discretion, to direct a hearing by the IAS court as to whether defendant’s exclusive use and occupancy of the marital apartment should continue, and otherwise affirmed, without costs.

Ordinarily, where there are conflicting allegations by the parties, a hearing is required before exclusive occupancy pendente lite is directed (see, Formato v Formato, 173 AD2d 274; Preston v Preston, 147 AD2d 464). We find that there was no reason to depart from that general rule in the instant case. Accordingly, the matter is remanded for a hearing to determine that issue, with the status quo of defendant’s exclusive occupancy to continue pending determination of the issue by the IAS court. Concur — Murphy, P. J., Sullivan, Ellerin, Kupferman and Kassal, JJ.