Opinion
April 1, 1996
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
We reject the appellant's contention that the Supreme Court improperly conditioned the granting of a protective order under CPLR 5240 staying the plaintiff from executing upon the appellant's interest in a vacation home owned by the appellant and his wife as tenants by the entirety, upon payment by the appellant of $2,000 per month toward a deficiency judgment previously entered against himself and not entered against his wife. While the sale is to aid in the collection of a debt owed solely by the appellant and not owed by his wife, it is undisputed that any execution upon the appellant's interest in the vacation home would not affect Mrs. Gutterman's rights in it ( see, V.R.W., Inc. v. Klein, 68 N.Y.2d 560), and that the vacation home in question is not the primary family residence ( cf., Hammond v. Econo-Car of N. Shore, 71 Misc.2d 546). Moreover, the record supports the plaintiff's contention that the appellant is attempting to frustrate the plaintiff's attempts to collect the money owed to the plaintiff by the appellant. Under these circumstances, we cannot say that the Supreme Court improvidently exercised its discretion in conditioning its grant of a protective order upon the appellant's making the payments in question ( see, Matter of AMEV Capital Corp. v. Kirk, 180 A.D.2d 791; Finnegan v. Humes, 252 App. Div. 385, affd 277 N.Y. 682). Sullivan, J.P., Copertino, Pizzuto and Florio, JJ., concur.