Opinion
October 10, 1989
Appeal from the Supreme Court, Nassau County (McCabe, J.).
Ordered that the appeal from the order dated April 19, 1988, is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the facts and in the exercise of discretion, and the plaintiff is awarded exclusive possession of the marital residence located at 1336 Cambria Street, Uniondale, New York, until the parties' child reaches the age of 21 years or is sooner emancipated, at which time the residence will be sold; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because no appeal lies from an order made upon reargument which adheres to an original determination in a decision (see, Stockfield v Stockfield, 131 A.D.2d 834) and because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
Under the circumstances of this case, we conclude that the trial court erred in directing the immediate sale of the marital residence. The parties' son, who was 12 years old at the time of trial, had been living in the marital residence since the age of six (see, Patti v Patti, 99 A.D.2d 772). Additionally, the evidence adduced at trial established that comparable rental property in the same neighborhood would be substantially more expensive (see, Hillmann v Hillmann, 109 A.D.2d 777; Patti v Patti, supra). Finally, any immediate need of the parties for their share of the proceeds of such a sale is outweighed by the need of the custodial parent and the child to occupy the home (cf., Lauer v Lauer, 145 A.D.2d 470; Parris v Parris, 136 A.D.2d 685; Blackman v Blackman, 131 A.D.2d 801, 804). Thus, the plaintiff, as custodial parent, is entitled to exclusive possession of the marital residence until the child reaches the age of 21 or is sooner emancipated. Brown, J.P., Eiber, Kooper and Rosenblatt, JJ., concur.