| Arata v Behling |
| 2008 NY Slip Op 10570 [57 AD3d 925] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Jeffrey H. Arata, Appellant, v Deborah Schneider Behling,Respondent. |
—[*1] John J. Broderick, Syosset, N.Y., for respondent.
In an action for the partition and sale of real property, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Rebolini, J.), dated May 6, 2008, which denied his motionfor summary judgment.
Ordered that the order is affirmed, with costs.
On January 31, 2005 Francis L. Arata (hereinafter Francis) conveyed his right, title, andinterest to certain property in Islip (hereinafter the subject property) to his son, the plaintiffJeffrey H. Arata (hereinafter the plaintiff) while reserving a life estate. Prior to that conveyanceand since 1992 Francis and his long-time companion, the defendant, Deborah Schneider Behling(hereinafter the defendant),owned the subject property as joint tenants with the right ofsurvivorship. On July 29, 2007 Francis executed a document entitled "Release of Life Estate,"releasing to the plaintiff his previously-held life estate in the subject property. In September2007, the plaintiff commenced this action for partition and sale of the subject property alleging,inter alia, that he and the defendant each owned a one-half interest in it as tenants in common.The Supreme Court denied the plaintiff's motion for summary judgment. We affirm.
"A person holding and in possession of real property as joint tenant or tenant in common, inwhich he [or she] has an estate of inheritance, or for life, or for years, may maintain an action forthe partition of the property, and for a sale if it appears that a partition cannot be made withoutgreat prejudice to the owners" (RPAPL 901 [1]). The right to partition is not absolute, however,and while a tenant in common has the right to maintain an action for partition pursuant toRPAPL 901, the [*2]remedy is always subject to the equitiesbetween the parties (see Graffeo v Paciello, 46 AD3d 613, 614 [2007]; Ripp v Ripp,38 AD2d 65, 68-69 [1971]).
Here, the plaintiff established his entitlement to summary judgment by demonstrating hisownership and right to possession of the subject property pursuant to the duly-executed bargainand sale deed dated January 31, 2005 and the "Release of Life Estate" dated July 29, 2007(see RPAPL 901 [1]; James v James, 52 AD3d 474 [2008]). In response, thedefendant raised triable issues of fact as to whether the equities favor her position (cf. Jamesv James, 52 AD3d 474 [2008]; Donlon v Diamico, 33 AD3d 841, 842 [2006]).Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment.Prudenti, P.J., Dillon, Eng and Leventhal, JJ., concur.