| Degliuomini v Degliuomini |
| 2007 NY Slip Op 08988 [45 AD3d 626] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Christine Degliuomini, Appellant-Respondent, v BeatriceDegliuomini, Respondent-Appellant. Edward Harold King, NonpartyRespondent. |
—[*1] Hass & Gottlieb, White Plains, N.Y. (Lawrence M. Gottlieb of counsel),respondent-appellant. Edward Harold King, Brooklyn, N.Y., nonparty respondent pro se.
In an action, inter alia, to partition real property, (1) the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (M. Garson, J.), datedFebruary 10, 2005, as denied that branch of her motion which was to reject that portion of areferee's report (King, R.), dated June 14, 2004, which, after a hearing, recommended an award infavor of the defendant in the sum of $199,291.98, representing reimbursement for one half of themortgage payments and real estate taxes paid by the defendant's corporation with respect to thesubject property, directed that the referee's fee be shared equally by the parties and, in effect,fixed her half of the referee's fee at $35,271.77, and the defendant cross-appeals, as limited byher brief, from so much of the same order as, in effect, denied those branches of her cross motionwhich were to reject that portion of the referee's report which recommended that she not beawarded any reimbursement for repairs, utility expenses, and insurance with respect to thesubject property, and to confirm that portion of the referee's report which recommended an awardto her of $16,543.08, representing reimbursement for one half of the real estate taxes paid by herafter December 12, 2002, directed that [*2]the referee's fee beshared equally by the parties and, in effect, fixed her half of the referee's fee at $35,271.77, (2)the defendant appeals, as limited by her brief, from so much of an interlocutory judgment of thesame court dated April 13, 2005, as, upon the order dated February 10, 2005, is in favor of thereferee and against her in the principal sum of $35,271.77, (3) the defendant appeals from anorder of the same court (Martin, J.) dated September 9, 2005, which denied her motion, amongother things, to hold the plaintiff in default of certain "terms of sale" for the subject property, and(4) the plaintiff appeals, as limited by her brief, from so much of an order of the same court(Martin, J.) dated February 21, 2006, as denied those branches of her motion which were forleave to renew her opposition to the defendant's prior motion for summary judgment dismissingher cause of action for an accounting of the rents of the subject property, which had been grantedin a prior order of the same court (Mason, J.) dated July 10, 2000, and for leave to reargue, andthe defendant cross-appeals, as limited by her brief, from so much of the same order as, upongranting that branch of her motion which was for the release of the proceeds of the sale of thesubject property, directed that certain proceeds be held in escrow.
Ordered that the cross appeal from so much of the order dated February 10, 2005, as, ineffect, fixed the defendant's half of the referee's fee at $35,271.77, is dismissed, without costs ordisbursements, as that portion of the order was superseded by the interlocutory judgment enteredthereon; and it is further,
Ordered that the appeal from so much of the order dated February 21, 2006, as denied thatbranch of the plaintiff's motion which was for leave to reargue is dismissed, without costs ordisbursements, as no appeal lies from the denial of reargument (see Bellantoni v Kelligrew, 26 AD3d401 [2006]); and it is further,
Ordered that the order dated February 10, 2005 is modified, on the law, (1) by deleting theprovision thereof, in effect, fixing the plaintiff's half of the referee's fee at $35,271.77, and (2) bydeleting the provision thereof, in effect, denying that branch of the defendant's cross motionwhich was to confirm that portion of the referee's report which recommended an award of$16,543.08, representing reimbursement for one half of the real estate taxes paid by her afterDecember 12, 2002, and substituting therefor a provision granting that branch of the crossmotion; as so modified, the order dated February 10, 2005, is affirmed insofar as reviewed,without costs or disbursements, and that portion of the interlocutory judgment which is in favorof the referee and against the plaintiff in the principal sum of $35,271.77 is vacated; and it isfurther,
Ordered that the interlocutory judgment dated April 13, 2005 is reversed insofar as appealedfrom by the defendant, on the law, without costs or disbursements, and the matter is remitted tothe Supreme Court, Kings County, for further proceedings consistent herewith; and it is further,
Ordered that the order dated September 9, 2005 is affirmed, without costs or disbursements;and it is further,
Ordered that the order dated February 21, 2006 is affirmed insofar as reviewed, without costsor disbursements.
In 1990 the plaintiff Christine Degliuomini, and the defendant Beatrice [*3]Degliuomini, who are sisters-in-law, became tenants in commonwith respect to the subject commercial property (hereinafter the premises) when it was deeded tothem by their respective husbands. The defendant then began to conduct the business of herwholly-owned corporation at the premises. While the plaintiff never operated a business at thepremises, her husband once did, but stopped doing so when a dispute arose between him and thedefendant's husband.
In 1999 the plaintiff commenced the instant action against the defendant seeking, amongother things, a partition of the premises. Subsequently, in an order dated July 10, 2000(hereinafter the reference order), the Supreme Court, inter alia, appointed a referee to hear andreport on the amount that the plaintiff owed the defendant for certain costs that she had incurredwith respect to the premises since 1990.
In a report dated June 14, 2004, the referee Edward Harold King, who had conducted ahearing, recommended that the defendant be reimbursed for one half of certain payments that hercorporation made on her behalf with respect to the premises. Specifically, the refereerecommended that the defendant be reimbursed for one half of the payments that were madetoward real estate taxes and a mortgage on the premises, but not for payments toward repairs,insurance, or utilities. The referee also recommended that "upon the submission by affidavit withappropriate submissions," the defendant be reimbursed for any payments that she or hercorporation made toward real estate taxes after December 12, 2002.
In an order dated February 10, 2005, the Supreme Court, inter alia, denied that branch of theplaintiff's motion which was to reject that portion of the referee's report which recommended anaward in favor of the defendant in the sum of $199,291.98, representing reimbursement for onehalf of the mortgage payments and real estate taxes paid by the defendant's corporation withrespect to the subject property. In addition, the Supreme Court directed that the referee's fee beshared equally by the parties, and, in effect, fixed that fee at $70,543.54. Although the defendantprovided documentation showing that her corporation had made certain payments afterDecember 12, 2002 toward real estate taxes, the court did not award the defendant anyreimbursement for those payments.
Contrary to the plaintiff's contention, the Supreme Court correctly denied that branch of hermotion which was to reject that portion of the referee's report which recommended an award infavor of the defendant in the sum of $199,291.98, representing reimbursement for one half of themortgage payments and real estate taxes paid by the defendant's corporation with respect to thesubject property, as the referee's determination that she was entitled to such reimbursement issupported by the record (see Frater v Lavine, 229 AD2d 564 [1996]). Absent an ouster,tenants-in-common equally bear the costs incurred in maintaining the property (see Burrofatov Cretella, 108 Misc 2d 203, 206 [1981]; cf. Kwang Hee Lee v Adjmi 936 Realty Assoc., 34 AD3d 646, 648[2006]). The evidence at the hearing supported the referee's finding that the plaintiff, who failedto establish an ouster, was responsible for one half of the payments toward the real estate taxesand the mortgage (see Corsa vBiernacki, 2 AD3d 388, 389 [2003]; Freigang v Freigang, 256 AD2d 539,539-540 [1998]). Furthermore, since the referee recommended that the defendant be reimbursedfor one half of the real estate taxes paid by her corporation after December 12, 2002, and sincethe defendant satisfactorily established that $33,086.16 had been paid after that date toward realestate taxes, the Supreme Court should have awarded her an additional $16,543.08.
In addition, contrary to the defendant's contention, the Supreme Court also correctly [*4]denied those branches of her cross motion which were to reject thatportion of the referee's report which recommended that she not be awarded any reimbursementfor repairs, utility expenses, and insurance with respect to the subject property, as the referee'sdetermination that she was not entitled to such reimbursement is supported by the record (seeFrater v Lavine, 229 AD2d at 564). The evidence at the hearing supported the referee'sfinding that the defendant failed to establish that certain repairs were necessary to protect orpreserve the premises (see Frater v Lavine, 229 AD2d at 564; Wawrzusin vWawrzusin, 212 AD2d 779, 780 [1995]; Bailey v Mormino, 6 AD2d 993 [1958]).Furthermore, an action for partition is "equitable in nature" (Berlin v Wojnarowski, 32 AD3d 810, 811 [2006] [internalquotation marks omitted]), and the evidence supported the referee's finding that it would beinequitable to require the plaintiff to contribute toward the cost of the utilities, from which thedefendant's corporation benefitted. Moreover, since the testimony of the defendant's insuranceagent was stricken when the plaintiff was deprived of an opportunity to cross-examine him, theevidence supported the referee's finding that the defendant failed to establish her entitlement toreimbursement for insurance premiums.
The Supreme Court properly required each of the parties to pay one half of the referee's fee(see H & Y Realty Co. v Baron, 193 AD2d 429, 430 [1993]). However, we are unable onthe record before us to ascertain the basis of the Supreme Court's determination as to the amountof the referee's fee. Accordingly, we remit the matter to the Supreme Court, Kings County, for ahearing and a new determination thereafter on the issue of the amount of the referee's fee to beawarded.
The parties' remaining contentions are without merit. Schmidt, J.P., Goldstein, Covello andDickerson, JJ., concur.