Jarostchuk v Makarow

[*1] Jarostchuk v Makarow 2006 NY Slip Op 50905(U) [12 Misc 3d 1155(A)] Decided on March 7, 2006 Supreme Court, Suffolk County Pitts, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 7, 2006
Supreme Court, Suffolk County

Sonia Jarostchuk, Plaintiff,

against

Maria A. Makarow, n/k/a Maria Dorfman, Defendant.



23224/05



Pltf's/Pet's Atty:

Concetta G. Spirio, Esq.

10 East Main Street PMB No.130

East Islip, New York 11730

Deft's/Resp's Atty:

Eschen, Frenkel & Weisman, LLP

20 West Main Street

Bay Shore, New York 11706-8304

Arthur G. Pitts, J.

ORDERED that the plaintiff Sonia Jarostchuk's motion for an order directing the defendant Maria A. Makarow a/k/a Maria Dorfman to give the plaintiff access and joint possession of the premises known as 6 East Maple Street, Central Islip, New York and [*2]restraining the defendant from denying such access and joint possession during the pendency of the instant partition action is granted. It is further

ORDERED that the defendant is enjoined from damaging, encumbering or wasting any potion of the subject premises and any structure thereon or from making any alteration or changes to the structures on the subject premises during the determination of the within action. It is further

ORDERED that the plaintiff's motion for an order directing the defendant to turn over any and all articles of tangible personal property representing the contents of the subject premises is denied as being moot. The defendant has so complied.

The matter at bar is one sounding in partition. The plaintiff and defendant are sisters. By deed dated May 25, 1999 their mother, Maria Makarow conveyed the premises known as 6 East Maple Street, Central Islip, New York to the parties, title to be held as joint tenants in common with their mother retaining a life estate in the property. On August 18, 2005 Maria Makarow died. The plaintiff alleges that upon her mother's death the defendant changed the locks, refused her access and retained sole possession of the premises. In opposition to the instant motion, the defendant avers that her mother's intent was to transfer the property to her for her exclusive use only and the plaintiff's name was placed on the deed solely for the purpose of effecting a transfer of the property to the plaintiff in the event that she died prior to her mother. The defendant has failed to proffer any evidence other than her own affidavit to support such allegation.

The law is well settled that in order to prevail on a motion for a preliminary injunction, the movant must clearly demonstrate (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent granting of the preliminary injunction, and (3) a balancing of the equities in his/her favor. Preliminary injunctive relief is a drastic remedy which will not be granted "unless a clear right thereto is established * * * and the burden of showing an undisputed right rests upon the movant [citations omitted]" ( Doe v. Poe 189 AD2d 132 [2nd Dept.1993] 189 AD2d 132 )

Clearly, a tenant in common of real property may maintain an action for the partition and for the sale of the property, if it appears that partition alone cannot be made without great prejudice to the owners (see, RPAPL 901[1]; DeRisi v. Santoro, 262 AD2d 270, 691 NYS2d 111; Piccirillo v. Friedman, 244 AD2d 469, 664 NYS2d 104; Bufogle v. Greek, 152 AD2d 527, 543 NYS2d 152; Luvera v. Luvera, 119 AD2d 810, 501 NYS2d 438). ( Wilbur v. Wilbur, 266 AD2d 535, 152 NYS2d 103 [2nd Dept. 1999] ) Pursuant to the parties admissions and the documentary evidence indicating the same, it is established that the plaintiff is a tenant in common with the defendant as to the subject property and as such, she is entitled to bring the instant proceeding. ( RPAPL 901) While partition is not an absolute right and may be precluded by the equities presented in a given case (see, Barol v. Barol, 95 AD2d 942, 464 NYS2d 561; Ripp v. Ripp, 38 AD2d 65, 327 NYS2d 465, affd. 32 NY2d 755, 344 NYS2d 950, 298 NE2d 114) ( Bufogle v. Greek, 152 AD2d 527, 543 NYS2d 152 [2nd Dept. 1989] ) it is apparent that [*3]based upon the record before the Court, the plaintiff has established a likelihood of ultimate success on the merits, she would be irreparable harmed by not being allowed access to property which she is admittedly an owner, and the equities are clearly favorable to her. Accordingly, pursuant to the foregoing and the circumstances presented herein, the plaintiff's motion is in all respects granted.

This shall constitute the decision and order of the Court.

So ordered.

Dated: Riverhead, New York

March 7, 2006 J.S.C.