| Ehrgott v Buzerak |
| 2008 NY Slip Op 02549 [49 AD3d 681] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Carol Ehrgott, Appellant, v Daniel F. Buzerak,Respondent. |
—[*1] Eileen West, Pleasantville, N.Y., for respondent.
In an action pursuant to RPAPL article 9 to partition real property, the plaintiff appeals fromso much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered January 2,2007, as, upon searching the record on her cross motion for summary judgment, awardedsummary judgment in favor of the defendant dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thematter is remitted to the Supreme Court, Westchester County, for further proceedings on thecomplaint, including determination of any pending undecided motions.
The parties were married in 1974. While married, they purchased the former marital homelocated in Croton Falls and took ownership as tenants by the entirety. On or about November 6,1998 a judgment of divorce was entered in an action commenced by the plaintiff. The judgmentstated, inter alia, "that the parties . . . have no marital property to be disposed ofequitably pursuant to Domestic Relations Law 236B (5)." The defendant continued to reside in,and maintain, the former marital home.
In 2005 the plaintiff commenced this action pursuant to RPAPL article 9 for the partition ofthe subject property. The defendant, acknowledging that, "under the circumstances [,] theplaintiff still has an ownership interest in the premises," moved, in effect, for a judgmentdeclaring the respective rights of the parties to the property. The plaintiff cross-moved forsummary judgment. Upon searching the record on the plaintiff's cross motion, the Supreme Courtawarded summary judgment to the defendant dismissing the complaint. The court concluded thatthe plaintiff's claim [*2]to the subject property was bothcollaterally and judicially estopped. We reverse.
Absent any disposition of the property, the judgment of divorce simply converted the parties'tenancy by the entirety in the property to a tenancy in common (see Goldman v Goldman,95 NY2d 120, 122 [2000]; Thomas vSamuel, 40 AD3d 744, 745 [2007]). It did not otherwise affect the parties' rights and,indeed, the defendant acknowledged that the judgment of divorce did not extinguish theplaintiff's ownership interest in the property. Nor was the plaintiff estopped from asserting thatinterest.
The judgment of divorce stated only that "the parties . . . have no maritalproperty to be disposed of equitably pursuant to Domestic Relations Law 236B (5)." Under thecircumstances of this case, that represented a finding, not that the parties had no marital property,but that they were not asking the court to equitably distribute any marital property. Inasmuch asthe judgment of divorce did not award exclusive occupancy to the defendant, it does not bar theplaintiff, as a tenant in common, from seeking to partition the property (see Freigang vFreigang, 256 AD2d 539 [1998]; cf. Ripp v Ripp, 38 AD2d 65 [1971], affd32 NY2d 755 [1973]). Accordingly, the Supreme Court erred in searching the record on theplaintiff's cross motion and awarding summary judgment to the defendant dismissing thecomplaint.
On this limited appeal, we do not reach the parties' remaining contentions raised in theirrespective motion papers regarding, inter alia, the defendant's alleged right to reimbursement forthe expenses he incurred in connection with the subject property during the period of his soleoccupancy. Fisher, J.P., Miller, McCarthy and Chambers, JJ., concur.