THE UPHPA

On December 6, 2019, Governor Andrew Cuomo signed into law New York’s version of the Uniform Partition of Heirs Property Act (UPHPA) (RPAPL §993). Under the UPHPA, if the property for which the complaint seeks partition qualifies as “heirs property” as defined by RPAPL §993[2](e), then the filing of a complaint requesting a sale now constitutes an agreement by the plaintiff that his or her interest may be acquired by other co-tenants who have not requested a partition by sale at a value determined by the court. 

In Pachter v. 3063 BRIGHTON 8 PROPS. LLC, 2020 NY Slip Op 51108 - NY: Supreme Court September 29, 2020, defendants in a partition action attempted to raise the UPHPA as a defense to a regular partition action but this was denied:

"Defendant's motion for leave to amend its answer, to add an affirmative defense claiming that the Uniform Partition of Heirs Property Act (RPAPL § 993) is applicable to plaintiffs' partition cause of action, is denied. The statute clearly states that it is effective as of December 6, 2019, and it "applies to partition actions filed on or after [December 6, 2019]" (RPAPL § 993(3)(a)). Defendant claims that the action was commenced when the amended complaint was filed on January 22, 2020 (Defendant's Affirmation in Reply ¶¶ 4, 5). However, plaintiff disagrees, indicating that the action was commenced on August 19, 2019, when the original complaint was filed (Plaintiffs' Reply Memorandum of Law at 3). CPLR § 304(a) states that an action is commenced by the filing of a summons and complaint (CPLR § 304(a)). CPLR § 203(f) indicates that claims in an amended complaint are "interposed" when the original complaint was filed, as long as the original complaint "give[s] notice of the transactions, occurrences, or series of transactions or occurrences to be proved pursuant to the amended [complaint]" (CPLR § 203(f)). The only difference between the original and amended complaint concerns the status of the plaintiffs as beneficiaries under the will in the original complaint, as opposed to intestate heirs in the amended complaint. The amendment is not material, since the amendment has no effect on the plaintiffs' right to partition the property. Therefore, the amended complaint has no effect on the date the action was commenced (See also Valladares v. Valladares, 55 NY2d 388, 391 [1982], indicating that the action was commenced as of the service of the original complaint). Since the action was commenced on August 19, 2019, the Uniform Partition of Heirs Property Act does not apply to this action.

The cases defendant cites in support of his contention that the action was commenced by the filing of the amended complaint are distinguishable. Perez v. Paramount Communications, 92 NY2d 749 [1999], concerned whether the filing of a motion for leave to amend a complaint to add a defendant tolled the statute of limitations. This case does not involve adding additional parties. Schlapa v. Consolidated Edison Co. of NY, Inc., 174 AD3d 934 [2d. Dept. 2019], also involves the issue of adding additional defendants, indicating that the action was commenced against the additional defendants when the plaintiff "filed the supplemental summons and amended complaint with the Queens County Clerk's Office" (Id. at 935). Long v. Sowande, 27 AD3d 247 [1st Dept. 2006], can also be differentiated, as the issue in that case was whether cross claims by newly added defendants were time-barred. Therefore, this action was commenced by the filing of the initial complaint on August 19, 2019. Although defendant argues that the statute should be applied retroactively, when a statute clearly states that it applies to actions commenced after its effective date, retroactive application is precluded (Golston-Green v. City of New York, 184 AD3d 24, 24 n.1 [2d. Dept. 2020])."