In this case, a federal court addresses New York State law on partition of real property

Chasewood v. Kay, NYLJ January 10, Date filed: 2020-01-06, Court: U.S. District Court for the Eastern District of New York, U.S. – EDNY, Judge: Magistrate Judge Steven Gold, Case Number: 18-CV-623:

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B. Partition and Sale

“A person holding and in possession of real property as…tenant in common…may maintain an action for 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). A court overseeing a partition action will enter an “interlocutory judgment,” which (1) “shall determine the right, share or interest of each party in the property, as far as the same has been ascertained”; (2) “[w]here the property…is so circumstanced that a partition thereof cannot be made without great prejudice to the owners[,]…shall direct that the property…be sold at public auction”; and (3) when the judgment is in favor of the plaintiff, “shall direct that partition be made between the parties according to their respective rights, shares and interests.” RPAPL §915.

“The tenant seeking the partition need not be in actual possession of the property to bring such an action, but instead need only have a right to possession of the property pursuant to the property’s title.” Melnick v. Press, 809 F. Supp. 2d 43, 58 (E.D.N.Y. 2011). Nonetheless, “[t]he right to partition is not absolute,…and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties.” Tsoukas v. Tsoukas, 107 A.D.3d 879, 880 (2d Dep’t 2013). Accordingly, “the statutory right of partition…may be precluded by the equities presented in a given case.” Ferguson v. McLoughlin, 184 A.D.2d 294, 294 (1st Dep’t 1992).

A plaintiff tenant in common seeking summary judgment on partition is typically required to make a prima facie showing of his or her ownership and right to possession. See Fini v. Marini, 164 A.D.3d 1218, 1221 (2d Dep’t 2018) (“A plaintiff establishes his or her right to summary judgment on a cause of action for partition and sale by demonstrating ownership and right to possession of the property.”); Cadle Co. v. Calcador, 85 A.D.3d 700, 702 (2d Dep’t 2011) (same); Manganiello v. Lipman, 74 A.D.3d 667, 668 (1st Dep’t 2010) (finding that “[d]efendant, by merely averring that plaintiff never contributed to the purchase of the premises, that she has solely contributed to the property’s maintenance and upkeep since defendant’s departure from the same, and that she has continuously occupied the condominium since that time, failed to controvert plaintiff’s ownership interest”). A defendant, however, may defeat the motion by raising a triable issue of fact as to whether the equities favor partition. See Arata v. Behling, 57 A.D.3d 925, 926 (2d Dep’t 2008) (affirming denial of summary judgment where, although plaintiff met his prima facie burden, “the defendant raised triable issues of fact as to whether the equities favor her position”).

C. Accounting

“A partition action, although statutory, is equitable in nature and an accounting of the income and expenses of the property sought to be partitioned is a necessary incident thereof.” Melnick, 809 F.Supp.2d at 58 (internal quotation marks and citation omitted). Generally, an accounting “should be had as a matter of right before entry of the interlocutory or final judgment and before any division of money between the parties.” Gapihan v. Hemmings, 121 A.D.3d 1397, 1399 (3d Dep’t 2014) (quoting McVicker v. Sarma, 163 A.D.2d 721, 722 (3d Dep’t 1990)).

New York common law with respect to the timing of an accounting relative to the granting of partition is somewhat unclear, though, and it appears that whether an accounting must be held prior to the entry of an interlocutory judgment is a matter within the discretion of the trial court. Compare Gapihan, 121 A.D.3d at 1399 (providing that the accounting should occur prior to entry of the interlocutory or final judgment), and Goldberger v. Rudnicki, 94 A.D.3d 1048, 1050 (2d Dep’t 2012) (holding that although plaintiff “established his prima facie entitlement to judgment as a matter of law by demonstrating his ownership and right to possession…and by showing that a physical partition would lead to great prejudice,” the parties’ “disagreements as to their respective interests, rights, and share” in the property must be determined prior to entry of an interlocutory judgment of partition), with McCormick v. Pickert, 51 A.D.3d 1109, 1110-11 (3d Dep’t 2008) (acknowledging the general rule that an accounting “should be had as a matter of right before entry of the interlocutory or final judgment and before any division of money between the parties” (quoting Wong v. Chi-Kay Cheung, 46 A.D.3d 1322, 1322 (3d Dep’t 2007)), but nonetheless finding that because plaintiffs asserted that unnecessary ongoing maintenance expenses would be incurred if a sale were deferred, and because defendant would not be prejudiced, the trial court did not abuse its discretion in directing that a sale take place and that the proceeds be held in escrow until an accounting was completed), and Donlon v. Diamico, 33 A.D.3d 841, 842 (2d Dep’t 2008) (affirming the trial court’s grant of summary judgment to plaintiff on her partition cause of action, but modifying the order to provide that “[p]rior to the entry of an interlocutory judgment directing the sale of the subject property, an accounting must be made of the income and expenses of the property”).

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