Tuesday, February 14, 2017


ZARBIS v. TRIADES, 2015 NY Slip Op 30317 - NY: Supreme Court 2015:

"The ancient remedies of actual partition, and of partition and sale are premised in equity and are now codified in Article 9 of the Real Property Actions and Proceedings Law (see Chang v Chang, 137 AD2d 371, 529 NYS2d 294 [1st Dept 1988]; Worthing v Cossar, 93 AD2d 515, 462 NYS2d 920 [4th Dept 1983]; Grody v Silverman, 222 AD 526, 226 NY 468 [1928]). Under RPAPL § 901, "a person holding and in possession of real property as a joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" (RPAPL § 901[1]; Tsoukas v Tsoukas, 107 AD3d 879, 968 NYS2d 109 [2d Dept 2013]). Accordingly, one owning an interest in real property with a right of possession such as a tenant, joint tenant or a tenant in common may seek physical partition of the property, or, a partition and sale thereof, if it appears that physical partition alone would greatly prejudice the owners of the premises (see Cadle Co. v Calcador, 85 AD3d 700, 926 NYS2d 106 [2d Dept 2011]; Bufogle v Greek, 152 AD2d 527, 528, 543 NYS2d 152 [2d Dept 1989]; see also Arata v Behling, 57 AD3d 925, 870 NYS2d 450 [2d Dept 2008]; Wilbur v Wilbur, 266 AD2d 535, 699 NYS2d 103 [2d Dept 1999]). While an accounting is a necessary incident of a partition action and should be had as a matter of right before entry of an interlocutory or final judgment and before any division of money between the parties is adjudicated (see Sampson v Delane, 34 AD3d 349, 824 NYS2d 277 [1st Dept]; Donlon v. Diamico, 33 AD3d 841, 823 NYS2d 483 [2d Dept 2006]; McVicker v Sarma, 163 AD2d 721, 558 NYS2d 997 [2d Dept 1990]; Worthing v Cossar, 93 AD2d 515, 462 NYS2d 920 [2d Dept [1983]), a sale without an accounting is permissible in cases wherein no accounting is demanded nor any claims for an adjustment of the rights of any party due to receipt by one party of more than his or her proper proportion of the rents, profits or share interest in the premises are asserted (see Robert McCormick v Pickert, 51 AD3d 1109, 856 NYS2d 306 [2d Dept 2008]).

In the absence of an agreement against partition, a partition of real property owned by joint tenants or tenants in common is a matter of right whenever one or more of them do not wish to hold and use the property under their tenancies (see Smith v. Smith, 116 AD2d 810, 497 NYS2d 19 [3d Dept 1986]; Gasko v Del Ventura, 96 AD2d 896, 466 NYS2d 64 [2d Dept 1983]; Chew v Sheldon, 214 NY 344, 108 NY 522 [1915]). This right to the remedy of partition has been long recognized as a "valuable part of such interest in that it affords the owner a means of disposing of his interest which cannot be defeated by his co-owners" (Rosen v Rosen, 78 AD2d 911, 912, 432 NYS2d 921 [3d Dept 1989]). The right to partition is not absolute, however, and while a tenant in common or joint teneant has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties (see Tsoukas v Tsoukas, 107 AD3d 879, supra; Pando v Tapia, 79 AD3d 993, 995, 914 NYS2d 226 [2d Dept 2010]; Arata v Behling, 57 AD3d 925, 926, 870 NYS2d 450 [2d Dept 2008]; Graffeo v Paciello, 46 AD3d 613, 614, 848 NYS2d 264 [2d Dept 2007]).

Before a partition or sale may be directed, a determination must be made as to the rights, shares, or interests of the parties and, in those cases wherein a sale is demanded rather than an actual physical partition, whether the property or any part thereof is so circumstanced that a partition thereof cannot be made without great prejudice to the owners (see RPAPL § 915). Such determinations must be included in the interlocutory judgment contemplated by RPAPL § 915 along with either a direction to sell at public auction or a direction to physically partit on the premises (see RPAPL § 911; § 915; Hales Ross, 89 AD3d 1261, 932 NYS2d 263 [2d Dept 2011]; see also Lauriello v Gallotta, 70 AD3d 1009, 895 NYS2d 495 [2d Dept 2010]; Wolfe v Wolfe, 187 AD2d 628, 590 NYS2d 504 [2d Dept 1992]). Determinations of the rights and shares of the parties must be made by declaration of the court directly or after a reference to take proof and report (see RPAPL § 911; § 907; Mary George, D.M.D. & Ralph Epstein, D.D.S., P.C. v J. William, 113 AD2d 869, 493 NYS2d 794 [2d Dept 1985]; see also Colley v Romas, 50 AD3d 1338, supra). Inquiry and ascertainment by the court or by reference into the existence of creditors having liens or other interest in the premises is also required and, if there be any such creditors, proceedings thereon must be held as required by RPAPL § 913. While the court may accept proof of the absence of the existence of any such creditor and dispense with the reference and the proceedings required thereon, a finding to that effect should issue.

The law is clear that in order to maintain an action for partition the plaintiff or other claimant must be the owner of an interest in real property and have legal title thereto or to a part thereof (see Sealy v Clifton, LLC, 68 AD3d 846, 890 NYS2d 598 [2d Dept 2009]; Mohamed v Defrin, 45 AD3d 252, 844 NYS2d 265 [1st Dept 2007]; Garland v Raunheim, 29 AD2d 383, 288 NYS2d 417 [1st Dept 1968]; Gifford v Whittemore, 4 AD2d 379, 165 NYS2d 201 [3d Dept 1957]; Harvey v Metz, 271 AD 788, 65 NYS2d 85 [2d Dept 1946]; O'Connor v O'Connor, 249 AD 515, 293 NYS 64 [2d Dept 1937]; McGillivray v Brundage, 36 Misc.2d 106, 231 NYS2d 870 [Sup. Ct. Monroe Cty. 1962]; Fraser v Bowerman, 104 Misc. 260, 171 NYS 835 [Sup Ct. Niagra Cty. 1918), aff'd. 187 AD 926, 174 NYS 903 [4th Dept 1919]). It is equally clear that a person who is possessed of an enforceable right to a conveyance of an interest in real property, but who is without legal title to such property, has no cognizable claim for partition (see Side v Brenneman, 7 AD 273, 40 NYS 3 [1st Dept 1896]).

Viable claims for partition and sale must thus rest upon allegations of a joint or common ownership in real property with attendant rights to possession and that the equities favor the claimant and, where a sale rather than an actual partition is demanded, proof that a physical partition of the premises cannot be made without great prejudice to the parties is also required (see Galitskaya v Presman, 92 AD3d 637, 937 NYS2d 878 [2d Dept 2012]; Cadle Co. v Calcador, 85 AD3d 700, supra; James v James, 52 AD3d 474, 859 NYS2d 479 [2d Dept 2008]). An award of summary judgment on a claim for partition is established only where the movant demonstrates its ownership interest and a right to possession under a deed or other instrument of conveyance, favorable equities and that a physical partition cannot be made without great prejudice in cases wherein a sale is demanded (see Tsoukas v Tsoukas, 107 AD3d 879, supra, Arata v Behling, 57 AD3d 925, 870 NYS2d 450 [2d Dept 2008])."

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