| Daly v Messina |
| 2008 NY Slip Op 04645 [51 AD3d 856] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Donna Daly, Appellant, v Rosemarie Messina et al.,Respondents. |
—[*1] Berkman, Henoch, Peterson & Peddy, P.C., Garden City, N.Y. (Joseph E. Macy, Robert A.Carruba, and Nicole E. Schiavo of counsel), for respondents.
In an action, inter alia, for the partition and sale of real property, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Adams, J.), entered May 17, 2007, which deniedher motion, among other things, for summary judgment on the complaint, and granted thedefendants' cross motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff and the defendants Rosemarie Messina and Patrick Franzese are siblings. In1982 their father deeded to himself and them certain real property at issue on this appeal "aspartners operating under the name of Franzese Realty Associates." The father was the primarymanager of the property (which apparently was a commercial rental property) until his death in1987. Thereafter, the property was managed by Messina and Franzese. In the years since thefather's death, there have been various disputes over the management of the property. Theplaintiff commenced this action, inter alia, for the partition and sale of the property, alleging thatshe and her siblings owned the property as tenants in common. The plaintiff moved, among otherthings, for summary judgment on the complaint, and the defendants cross-moved for summaryjudgment dismissing the complaint. The defendants argued that the parties held the property astenants in partnership, not tenants in common, and, therefore, the plaintiff could not maintain anaction for partition because there had not been a winding up of partnership affairs. The SupremeCourt denied the plaintiff's motion [*2]and granted thedefendants' cross motion. We affirm.
In support of their cross motion, the defendants demonstrated, prima facie, that the partiesheld the property as tenants in partnership (see Martin v Peyton, 246 NY 213 [1927];Alleva v Alleva Dairy, 129 AD2d 663 [1987]; Cohen v Biernoff, 84 AD2d 802[1981]) by submitting the 1982 deeds. In opposition, the plaintiff failed to raise a triable issue offact. Thus, this action, among other things, for the partition and sale of real property cannot bemaintained (see Kraus v Kraus, 250 NY 63 [1928]; Lord v Hull, 178 NY 9[1904]; Gaentner v Benkovich, 18AD3d 424 [2005]; Greshin v Sloane, 138 AD2d 569 [1988]; Goldberg vGoldberg, 276 App Div 1084 [1950]; see also Yew Prospect v Szulman, 305 AD2d588 [2003]). Accordingly, the Supreme Court properly granted the defendants' cross motion forsummary judgment dismissing the complaint. Fisher, J.P., Ritter, Florio and Carni, JJ., concur.