| Lauriello v Gallotta |
| 2010 NY Slip Op 01622 [70 AD3d 1009] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Christopher M. Lauriello et al., Respondents, v MarthaGallotta, Appellant, et al., Defendants. |
—[*1] Michael J. Good, Brooklyn, N.Y., for respondents.
In an action, inter alia, for the partition of real property, the defendant Martha Gallottaappeals from stated portions of an order of the Supreme Court, Kings County (Jacobson, J.),dated October 31, 2008, which, among other things, granted those branches of the plaintiffs'motion which were to authorize a referee to appraise the subject real property, and to place thereal property on the market for immediate sale as soon as a final report is prepared and anappraisal is rendered.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiffs' motion which was to authorize the referee to place the subject realproperty on the market for immediate sale as soon as a final report is prepared and an appraisal isrendered, and substituting therefor a provision denying that branch of the plaintiffs' motion anddirecting the referee to report to the Supreme Court, Kings County, as to the right, share, orinterest of each party in the property; as so modified, the order is affirmed insofar as appealedfrom, with costs to the plaintiffs.
The defendant correctly contends that the Supreme Court erred in granting that branch of theplaintiffs' motion which was to authorize the referee to place the subject property on the marketfor immediate sale as soon as a final report is prepared and an appraisal is rendered. RPAPL 915provides that, in an action for partition, an interlocutory judgment shall determine "the right,share, or interest of each party in the property." Where the property was so circumstanced that apartition thereof could not be made without great prejudice to the owners, the interlocutoryjudgment shall direct that the property be sold at public auction. Otherwise, the interlocutoryjudgment in favor of the plaintiff shall direct that partition be made between the partiesaccording to their respective right, share, or interest.
Here, there has been no interlocutory judgment determining the right, share, or interest ofeach party in the subject property. While it has been established that the parties are tenants incommon to the property, their disagreements as to their respective rights, shares, or interests inthis property remain unresolved. Such issues as the rights, shares, or interests of the parties, andwhether partition may be had without great prejudice, should be determined and declared by thecourt, after the referee reports to the court on these issues, before a partition or sale may bedirected (see Wolfe v Wolfe, 187 AD2d 628, 629 [1992]; Grossman v Baker,182 AD2d 1119 [1992]; George v Bridbord, 113 AD2d 869 [1985]). The actual physicalpartition of property is the preferred method and is presumed appropriate unless one partydemonstrates that actual physical partition would cause great prejudice, [*2]in which case the property must be sold at public auction (seeSnyder Fulton St., LLC v Fulton Interest, LLC, 57 AD3d 511, 513 [2008]; Loughran vCruickshank, 8 AD3d 799, 800 [2004]).
Furthermore, the Supreme Court erred in granting that branch of the plaintiffs' motion whichwas to authorize the referee to place the property on the market for immediate sale. If theproperty is placed for sale, the sale must be at public auction pursuant to RPAPL 231 (1), whichprovides that a sale of real property in pursuance of a judgment affecting the title to, or thepossession, use or enjoyment of, real property, shall be at public auction to the highest bidder.The Supreme Court should have denied that branch of the plaintiffs' motion and directed thereferee to report as to the rights, shares, or interests of the parties in the property.
However, it was not error for the Supreme Court to authorize the referee to obtain anappraisal of the property before its sale. An appraisal might enable the referee to establish aminimum selling price, or to determine whether an equal or equalized partition can be made(see Colley v Romas, 50 AD3d 1338 [2008]).
The appellant's remaining contention is without merit. Rivera, J.P., Dillon, Belen andRoman, JJ., concur.