Defendant Frank R. Nicodemus moves for a stay of the within action or, alternatively, for an order consolidating the within action with an action pending in this court under Index Number 3222/2005, captioned Frank Nicodemus v. Elsa M. Nicodemus, and for the appointment of a receiver to sell the subject property. The plaintiff opposes the application. For the following reasons, it is ordered that the defendant's motion is denied in its entirety.

Defendant Frank R. Nicodemus has failed to establish entitlement to a stay of the pending foreclosure action or consolidation of the action with the pending matrimonial action under Index Number 3222/2005. When actions present common questions of law and fact, the action may be joined unless the party opposing the motion demonstrates that joinder or consolidation will prejudice a substantial right. (Geneva Temps, Inc. v. New World Communities, Inc., 24 AD3d 332 [1st Dept. 2005].) Similarly, "[a] stay of one action pending the outcome of another is appropriate only where the decision in one will determine all the questions in the other, and where the judgment in one trial will dispose of the controversy in both actions; this requires a complete identity of parties, cause of action, and the judgment sought." (Somoza v. Pechnik, 3 AD3d 394 [1st Dept. 2004].) Although both actions involve determinations concerning the subject property, the actions do not involve common questions of law or fact. Moreover, the actions are in decidedly different procedural stages and consolidation would result in undue delay in the resolution of either matter. (Abrams v. Port Auth. Trans-Hudson Corp., 1 AD3d 118 [1st Dept. 2003].)

Defendant Frank R. Nicodemus has similarly failed to establish entitlement to the appointment of a receiver to sell the subject property. It is apparent from the defendant's motion papers that he believes a receiver is necessary to remedy issues in his matrimonial dispute with the plaintiff. It is well settled that unless the court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation or by declaring a void marriage a nullity, it has no authority to order the sale, pendente lite, of a marital residence allegedly owned by the parties as tenants by the entirety. (Kahn v. Kahn, 43 NY2d 203 [1977].) The defendant has otherwise failed to establish "there is a danger that the property will be removed from the state, or lost, materially injured or destroyed" as to warrant the appointment of a receiver. (CPLR §6401[a].)

Therefore, it is ordered that defendant Frank R. Nicodemus' motion is denied in its entirety.

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The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

April 19, 2011

ENTER

HON. JAMES D. PAGONES, A.J.S.C.