| Schwartz v Miltz |
| 2009 NY Slip Op 02348 [60 AD3d 928] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Walter Schwartz, Appellant, v Michelle Farkas Miltz,Respondent. |
—[*1] Weil & Kestenbaum, Bayside, N.Y. (Alan C. Kestenbaum of counsel), forrespondent.
In an action for the partition and sale of real property, the plaintiff appeals from a judgmentof the Supreme Court, Nassau County (Brandveen, J.), entered May 13, 2008, which, after anonjury trial, is in favor of the defendant and against him, dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, andthe matter is remitted to the Supreme Court, Nassau County, for further proceedings consistentherewith.
In August 2004 the plaintiff commenced the instant action for the partition and sale of realproperty. On a prior appeal in this action, this Court, inter alia, affirmed the Supreme Court'sdenial of the defendant's cross motion for summary judgment dismissing the complaint (seeSchwartz v Miltz, 37 AD3d 816 [2007]).
Following a nonjury trial, the Supreme Court erred in determining that it could not considerwhether an award of equitable relief to the plaintiff was appropriate (see CPLR 3017).Accordingly, the matter must be remitted to the Supreme Court, Nassau County, to consider theissue of equitable relief.
The plaintiff's remaining contentions are without merit. Spolzino, J.P., Ritter, Florio andMiller, JJ., concur.