The following papers numbered 1 to 11 read on this order to show cause by defendant for the following relief: (1) Pursuant to CPLR 5106 and 6401 appointing defendant Shujauddin Mollah as receiver of plaintiff's interest in the marital residence located at 81-35 259th Street, Floral Park, New York for the sale of said property to a bona fide purchaser for fair market value, so as to carry into effect the Order of this Court on December 14, 2009; (2) deeming that any loss of net proceeds from the sale of said marital residence due to plaintiff's failure to timely execute the Contract of sale to purchaser Basudeb Bhunia and Ruchi Brata Kundu, [*2]shall be deemed a dissipation of marital assets and such loss shall be borne solely by plaintiff from her share of any net proceeds or if the net proceeds are insufficient than from other monies found due and owing to plaintiff; (3) directing plaintiff to grant defendant and his agents, brokers or employees, access to the marital residence for the purpose of inspection, repairs, or any other valid reason in order to effectuate the sale of the premises in accordance with the Contract of Sale to purchasers Bhunia or Kundu, or to effectuate a sale to any other bona fide purchasers; and (4) granting such other and further relief as this court deems just and proper.

Upon the foregoing papers it is ordered that the motion is determined as follows:

Defendant's order to show cause pursuant to CPLR §5106 and §6401 appointing defendant Shujauddin Mollah as receiver of plaintiff's interest in the marital residence located at 81-35 259th Street, Floral Park, New York for the sale of said property to a bona fide purchaser for fair market value, so as to carry into effect the Order of this Court dated December 14, 2009, is granted, without opposition. The within Order to Show cause was borne out of a long, acrimonious matrimonial action commenced by Plaintiff in 2007, wherein Plaintiff now represents herself after a revolving door of legal representation and due to dilatory and obstructionist actions, her complaint and reply had previously been stricken by the court.

The current battle involves the marital residence, purchased jointly by the parties during the marriage and held as Tenants by the Entirety. A foreclosure proceeding was commenced on February 23, 2009 and is still pending.

On December 14, 2009, the parties and their respective attorneys, entered into a detailed written stipulation for the marital residence to be placed on the market for sale to a bona fide purchaser for fair market value by January 2, 2010, however, the listing price, initially set at $485,000, was to decrease periodically should no good faith purchaser come forward. Purchasers were found for a sale price of $450,000 with a broker fee of no more than 3%, which was within the parameters of the abovementioned stipulation and agreed to by the parties.

On or about February 22, 2010, the defendant executed a Contract of Sale (hereinafter the "Contract"), which was subsequently forwarded to plaintiff's prior attorney for plaintiff to execute same. Defendant contends that plaintiff refused to sign the Contract unless the defendant agreed to all of her settlement demands and execute a Stipulation providing for such settlement. On March 3, 2010, defendant offered to give the plaintiff a $10,000 advance from the net proceeds at the time of sale as partial settlement. Plaintiff rejected defendant's offer and subsequently plaintiff's attorney brought an order to show cause to withdraw as counsel, which was granted by this court. Defendant asserts that at no point since receiving the contract of sale has plaintiff objected to the substance of the Contract, rather defendant [*3]contends that the plaintiff is continuing a pattern of obstruction which previously had lead to a preclusion order being granted against plaintiff by the Hon. MaryEllen Fitzmaurice on January 30, 2009, as well as the striking of her complaint. Defendant further asserts that the prospective purchasers are threatening to withdraw their offer if the Contract is not signed immediately and closing is not held pursuant thereto.

Finally, defendant contended that should the purchasers withdraw their offer, the listing price would have been decreased pursuant to the aforementioned stipulation and the sellers would have been bound by the downward spiral solely as a consequence of plaintiff's obstructionist actions.

It is well settled that the appointment of a temporary receiver in a matrimonial action is an extreme remedy which should not be granted lightly. (Serdaroglu v Serdaroglu, 209 Ad2d 606 [2nd Dept 1994]; citing Adinolfi v. Adinolfi, 168 Ad2d 401 [2nd Dept 1992].)

Where a judgment of divorce, calls for the sale of the marital residence, and an acrimonious relationship exists between the parties, the court has the authority to appoint a receiver to sell the property. (Lutz v Goldstone, 42 AD3d 561 [2nd Dept 2007].) Further, this court has the authority to appoint a spouse as receiver to effectuate the sale of the former marital residence when the other spouse wilfully fails to "cooperate in effectuating the sale of the former marital residence as required by the parties' written stipulation." (Trezza v Trezza, 32 AD3d 1016 [2nd Dept 2006].) Significantly though, absent consent of the parties, the court is without authority to direct the sale of marital property prior to judgment. ( see Adamo -v- Adamo, 18 AD3d 407[2nd Dept 2005] citing Kahn -v- Kahn 43 NY2d 203 [1977]) However, given the continuing consent of plaintiff to the sale of the marital home as evidenced by the stipulation entered into by plaintiff with the assistance of counsel and testimony on the record by Plaintiff agreeing to the sale despite her recent conduct , and the negative pecuniary consequences which would inure to both parties' detriment, defendant's order to show cause appointing defendant Shujauddin Mollah as receiver of the marital residence located at 81-35 259th St, Floral Park, New York to effectuate the sale of the premises is granted, without opposition.

In addition, the portion of the defendant's order to show cause seeking to deem that any loss of net proceeds from the sale of said marital residence due to plaintiff's failure to timely execute the Contract, shall be deemed a dissipation of marital assets and such loss shall be borne solely by plaintiff from her share of any net proceeds or if the net proceeds are insufficient than from other monies found due and owing to plaintiff is denied as moot because the court, upon signing the order to show cause and prior to the hearing, appointed defendant receiver of plaintiff for the sole purpose of executing the contract of sale and accordingly, there is no loss of net proceeds.

The final portion of the defendant's order to show cause seeking to direct plaintiff to grant defendant and his agents, brokers or employees, access to the marital residence for the purpose of inspection, repairs, or any other valid reason in order to effectuate the sale of the premises in accordance with the Contract, or to effectuate a sale to any other bona fide [*4]purchasers is likewise granted, without opposition. The court notes that although on the return date of this motion the parties established an access schedule for said repairs and both parties have adhered to that agreement to date, given plaintiff's prior actions, the court, nonetheless, directs plaintiff is directed to grant such access to promote the sale of the premises.

This constitutes the decision and order of the court.

Dated: June 4 , 2010

__________________________

Hon. Bernice D. Siegal

J.S.C.