| Pando v Tapia |
| 2010 NY Slip Op 09488 [79 AD3d 993] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Thanas Pando, Appellant, v Maria Theresa Tapia,Respondent. |
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In an action for the partition and sale of real property and for an accounting, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.),dated September 8, 2009, as, in effect, denied those branches of his motion which were for summaryjudgment on the complaint and dismissing the second affirmative defense and the first and secondcounterclaims.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branchesof the plaintiff's motion which were for summary judgment on the complaint and dismissing the secondaffirmative defense and the first and second counterclaims are granted, and the matter is remitted to theSupreme Court, Queens County, to, inter alia, ascertain the rights, shares, and interests of the parties inthe subject premises, by a reference or otherwise, and thereafter for entry of an appropriate judgment.
In 1973 the defendant, Maria Theresa Tapia, and her husband, as tenants by the entirety,purchased certain real property in Queens (hereinafter the subject property). There were no children ofthe marriage and, in 1979, they were divorced. The judgment of divorce awarded exclusive possessionof the subject property to the defendant. In 2005 the defendant's former husband died. His solesurviving heirs were a son and a daughter from a prior marriage who inherited his interest in the subjectproperty. On April 29, 2008, they sold their interest in the subject property to the plaintiff, ThanasPando. In February 2009 the plaintiff commenced this action. In the order appealed from, the SupremeCourt, inter alia, denied those branches of the plaintiff's motion which were for summary judgment onthe complaint and dismissing the second affirmative defense and the first and second counterclaims. Wereverse the order insofar as appealed from and remit for further proceedings consistent with ourdetermination.
As a result of the 1979 divorce, the defendant and her former husband owned the subject propertyas tenants in common, since their ownership as tenants by the entirety was extinguished as a matter oflaw (see Goldman v Goldman, 95 NY2d 120, 122 [2000]; Kahn v Kahn, 43 NY2d203, 207 [1977]; Ehrgott v Buzerak, 49AD3d 681, 682 [2008]). After the death of the defendant's former husband in 2005, his interest inthe subject property passed to his two surviving heirs, and they, in turn, sold their interest to the plaintiff.Thus, the plaintiff and the defendant became owners of the [*2]subjectproperty as tenants in common, with each owning a one-half undivided interest (see Ramsey v Ramsey, 69 AD3d 829,831 [2010]; Duffy v Duffy, 21 AD3d928, 929 [2005]; Luvera v Luvera, 119 AD2d 810, 810-811 [1986]).
Pursuant to Real Property Actions and Proceedings Law § 901 (1), a tenant in commonmay maintain an action for the partition of real property and for a sale if a partition cannot be madewithout great prejudice to the owners (see RPAPL 901 [1]). While partition is governed bystatute, the actual remedy is subject to the equities between the parties (see Arata v Behling, 57 AD3d 925,926 [2008]; Freigang v Freigang, 256 AD2d 539, 540 [1998]). In a partition action where, ashere, one of the tenants in common was previously awarded exclusive possession pursuant to ajudgment of divorce, "the right of exclusive occupancy . . . and the restriction on partitionwhich results therefrom, must be deemed limited to a reasonable duration absent an express orimplied agreement to the contrary" (Surlak v Fulfree, 145 AD2d 79, 81 [1989] [emphasisadded]; see Luvera v Luvera, 119 AD2d at 811; Ripp v Ripp, 38 AD2d 65, 69[1971], affd 32 NY2d 755 [1973]). Here, the plaintiff made a prima facie showing ofentitlement to judgment as a matter of law on the complaint and dismissing the first and secondcounterclaims by submitting a duly executed deed demonstrating his ownership and the right topossession of the subject property as a tenant in common and evidence that the defendant's right toexclusive possession under the judgment of divorce had expired with the passage of a reasonableperiod of time (see Arata v Behling, 57 AD3d at 926; James v James, 52 AD3d 474 [2008]; Surlak v Fulfree, 145AD2d at 81).
In opposition, the defendant failed to raise a triable issue of fact rebutting the plaintiff's prima facieshowing or as to the merit of the affirmative defense of laches and the first and second counterclaims(see NYCTL 1998-2 Trustee v 2388Nostrand Corp., 69 AD3d 594, 595 [2010]). Specifically, the defendant failed to raise atriable issue of fact as to whether partition was barred by express or implied agreement or as towhether her right to exclusive possession, which had no stated duration in the judgment of divorce, hadnot expired after the passage of approximately 30 years (see Sherman v Sherman, 168 AD2d550, 551 [1990]; Surlak v Fulfree, 145 AD2d at 81; Luvera v Luvera, 119 AD2d at812). Under her second affirmative defense of laches, the defendant failed to raise a triable issue of factas to whether she was injured due to the plaintiff's delay in bringing this action (see Haberman vHaberman, 216 AD2d 525, 527 [1995]). With respect to her first counterclaim, she failed to raisea triable issue as to whether the subject property is her separate property (see Tsigler v Kasymova, 73 AD3d1159, 1159-1160 [2010]), and with respect to her second counterclaim, she failed to present any evidence to support her allegation that theplaintiff is barred from seeking partition under the doctrine of unclean hands.
Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion whichwere for summary judgment on the complaint, and dismissing the second affirmative defense and thefirst and second counterclaims (see RPAPL 915; Lauriello v Gallotta, 70 AD3d 1009, 1009-1010 [2010]). Prudenti, P.J.,Angiolillo, Belen and Sgroi, JJ., concur.