Rado v. Rado

—Appeal and cross appeal from parts of a judgment of Supreme Court, Cattaraugus County (Himelein, J.), entered June 6, 2001, that, inter alia, equitably distributed the marital property. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by directing that the marital residence be sold and the net proceeds be divided equally between the parties unless defendant exercises his buy-out option and pays plaintiff the sum of $18,000 within 120 days of service of a copy of the order of this Court with notice of entry and by deleting the third and fourth decretal paragraphs and as modified the judgment is affirmed without costs and the matter is remitted to Supreme Court, Cattaraugus County, for further proceedings in accordance with the following Memorandum: In this matrimonial action arising after 30 years of marriage, each party contends that Supreme Court erred in its equitable distribution of the marital property. Contrary to plaintiffs contention, the court did not abuse its discretion in awarding defendant exclusive possession of the marital residence, which previously belonged to his parents (see Lydick v Lydick, 130 AD2d 915, 916, Iv denied 70 NY2d 607). The court erred, however, in failing to specify a period of time in which defendant is entitled to exercise his buy-out option. The court directed defendant to pay plaintiff the sum of $18,000, representing one half of the value of the equity in the marital residence and further directed that, in the event that defendant did not wish to keep the marital residence, “the home shall be listed for sale and the parties shall 888 each receive one-half of the net proceeds.” We modify the judgment by directing that the marital residence be sold and the net proceeds be divided equally between the parties unless defendant exercises his buy-out option and pays plaintiff the sum of $18,000 within 120 days of service of a copy of the order of this Court with notice of entry.