| McIntosh v McIntosh |
| 2009 NY Slip Op 00512 [58 AD3d 814] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Lilleth McIntosh, Appellant, v Winston McIntosh,Respondent. |
—[*1]
In an action for the partition of real property, the plaintiff appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Queens County (Yablon, Ct. Atty. Ref.),dated March 9, 2007, as, after a hearing, awarded her the sum of only $96,350 of the $218,000profit from the sale of the property.
Ordered that the judgment is affirmed insofar as appealed from, without costs ordisbursements.
A tenant in common "has the right to take and occupy the whole of the premises andpreserve them from waste or injury, so long as he or she does not interfere with the right of [theother tenant] to also occupy the premises" (Jemzura v Jemzura, 36 NY2d 496, 503[1975]). Mere occupancy alone by one of the tenants does not make that tenant liable to the othertenant for use and occupancy absent an agreement to that effect or an ouster (see Misk v Moss, 41 AD3d 672[2007]; Degliuomini vDegliuomini, 12 AD3d 634 [2004]). Here, the plaintiff failed to establish that she wasousted from the property. Accordingly, the Court Attorney Referee properly found that thedefendant was entitled to a credit for one-half of the payments made for maintenance, upkeep,and repair of the premises, including mortgage and insurance (see Kwang Hee Lee v Adjmi 936 RealtyAssoc., 34 AD3d 646 [2006]; Corsa v Biernacki, 2 AD3d 388 [2003]), and the plaintiff wasentitled to one half of the amount of rent the defendant received (see Degliuomini v Degliuomini, 12AD3d 634 [2004]).
The plaintiff is not entitled to a new hearing based on the alleged untimeliness of the CourtAttorney Referee's decision, as the plaintiff never sought a new hearing on this ground prior tothe filing of the decision (see CPLR 4319; Cooper v Cooper, 52 AD3d 429 [2008]).[*2]
The plaintiff's remaining contentions are without merit.Prudenti, P.J., Spolzino, McCarthy and Leventhal, JJ., concur.