Cheslow v Huttner

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Cheslow v Huttner 2006 NY Slip Op 30672(U) October 17, 2006 Sup Ct, NY County Docket Number: 102658-06 Judge: Rosalyn H. Richter Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YOqK - NEW YORK COUNTY I I ; PART ZY Justice MOTION DATE -vMOTION SEQ. NO. M O T I O N CAL. NO. The following papers, numbered 1 to were read on this motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits ... - Exhibits Replying Affidavlts Cross-Motion: - Affidavits - Exhibits 0 Yes ,& Upon the foregoing papers, It is ordered that this motion -- 0C.T .i> g ; ;5 , GCl; MOTION IS DECIDED IN ACCORDANCE --\-WTH THE ATTACHED MEMORANDUM DECISION [* 2] YAFFA C HESLOW, P 1ain ti N, -against- DECISION AND ORDER Ilidcx NO. 102658-06 Motion Scqueiicc No. 2 N)NSTANC E 1TUTTNER, Dcfen d ant. I With the coiisciit of the par-ties, tlic Court severcd tlic partition claini from thc rcniainder of the action. [* 3] propcrty should ultiniatcly be sold and that Cheslow is cntitlcd to some of thc profits, Huttiicr vigoi-ously disputes that Chcslow is entitled to a 50%) sliarc. I-Iiittner argucs that Cheslow s ownership interest is sigiii ficaiitly smaller because Huttncr pl-ovidcd the bulk of thc down payment and carrying costs for tlic propcrty. I n addilion, Huttner mniiitaiiis that the partics had an oral agreemenl as to the proper disposition of thc townhouse in the cvciit tlie couple eiidcd tlicir relationsliip. It is wcll-scttlcd tliat oiie who holds an interest in rcal property as a teiiaiit i i i coiiinion may bring an action against motlicr tcnant-in-common h i - the partitimi o r sale of the propci-ty. RPAPL 5 901 [ I 1; Pic.c.ir.illo 1 . F r i d i n m , 244 A.D.2d 469 (2d Dcpt. 1997). Here, lhere i s no dispute that Cheslow owlis the towiihousc as a tenant in corntiion with Iluttncr. In a conferencc call with the Court, the parties agreed that a physical paitition of the townhouse would not be practical. Based on this discussion and the h c t s contained in tlie parties papei-s, the Court concludes that B sale is appropriate becausc a [physical] partition cannot be made without grcat prejudice to tlic owners. R P A P L 5 90 1 [ I]. The property in qucstion is a single fiimily townhouse and it would not bc possible for Clicslow and Huttner to live there togcthcr iii light of the obvious level of animosity betwccn thcrii. Indccd, at a conference b e h c this Court where the parlies were prcscnt, tlie tension bctwccii thcm was palpable. Nor has either party suggcsted that the townlioLisc could be reiiovatcd to allow the two to live iii scparatc p - l s o r it. Thus, the Couit concludes that Clieslow is entitled to a salc of tlie properly. S CY Lo~ighnuzv. Crz~ickslimlc,8 A.D.3d 799 (3d Dept. 2004)(ordering sale 01 property rather haii physical partition where court found that ai1 actual pliysical division would causc grcat prcj:Jidict:to the owners); Bor-o/ v. Harol, 95 A.D.2d 942 (3d Dcpt. 1983)(in light of the [act that there is 110 triablc issue of fiid concemiiig titlc and tlie plaintifl s status as a tenant -2- iii coiiinion, [* 4] sIImm ary j ud gm CI)t slioLI 1d have b eeii grant cd) . However, Clicslow s rcquest for a judicial detennination that she is entitled to 50% of the proceeds of a sale must be cleiiied at this stage becausc disputed factual issues exist as to the parties equitable sliarc in the propcrty. [P]ai-tition is an equitable rcnicdy i n riature and Supreme Court has the authority to ad,just [lie rights olthc parties so each receives his or her proper share oftlic properly a i d its benefits . / J z r ~ l I). Hzrlif, 13 A.D.3d 1041, 1042 (3d Dept. 2004); SL P r-rlso Kcrniringcr v. PCWIZC~I ,A.D.2d 20 (1 I Dcpt. 2003); DciLz v. Lkitz, 245 A.D.2d 638 (3d Dcpt. 1997). Among 306 tllc fxtors the CoiiI-t sliould consider lire tlic rcasonable value of improvements and repairs to tlic propel-ty, disparities in down payiients and niorigage paymcnts and the reasonable value of rental paymcnts with regad to a7 1 ousted co-tenant. Vfcck v. Vlcelc, 42 A.D.2d 308 (3d Dept. 1973). TIcrc, Huttiier maintains that she paid the bulk of the down paymcnt arid all of tlic closing cxpciiscs iii connection with tlic p r c h a s e orthe townhouse. Huttner also contends that shc paid for all subsequent rcnovations to the property and madc virtually all of the mortgage, tax aiid insurance payments. On the o t l w hand, Cheslow points out that tlic plain language of thc deed conclusively shows that the parties hac1 ageed that any procccds of a sale be evenly split. Cllicslow also arglies that such a division is appropriate since the partics had a committcd relationship and they intendcd to share tlicir joint assets equally. The Court concludes that the dccd languagc, although slrong evidcncc that Huttiier intciidcd to makc a gift ofhalfthe townhouse to Chcslow and that a 50/50 split was intcndcd, is not dispositive and does not preclude this Court from conducting a hearing on llie cquitics involved. Altliough the deed states that Clieslow and Huttner cach owns a one-half uiidividcd interest in the property, sucli language could bc construed siiuply as the pal-tics recognition octlic rebuLtable pi-esuniption h a t tciiaiits in cotiiincm arc entitled to an cqiial division -3 - [* 5] of thc property upon partition. Sm, c.g., L L I I v. ~ I Lrrng, 270 A.D.2~1463 Dcpt. 2000)(tenaiits in (2d common sharu a rebuttable presumption that cacli holds an equal iiiidivided oiic-half intcresl iii thc subject prcmises). rhcslow s :irguiiient, if accepted, would tui-ii this coiiiiiioii law rebuttable prcsumption into an in-cbuttable oiic aiid would preclude Hiittiler from showing that equityrequires a different division fro111 tlic 50/S0 split contemplaled by the deed. Cheslow citcs rio case that reqiiircs such a holding nor docs she point to any policy rciison to warrant this conclusion. hi 3 partition action, this Court sits both as a court of law, which must cvaluate thc wording of thc deed, and as a court olcqnity, which must corisidcr issues 0 1 Ihiriiess and tlic respective contributions of the parties. Thus, tlic Court concludes that a hearing IJIUSLbe held to detenmic the parties cquitablc share ortlic procccds of the salcn2 L 7 ~ 1 .yS ~ E W C A D.3d~194, 194-95 (1 Dept. 2006)( [w]hiIe [the] dcfeiidaiit s SL C I ~, ~ evideiicc that he paid virtually all o r tlic apa~dmeiit s purchase pricc and carrying costs is siirficicnt to rclxit the presuinption that the parlies are cntitled to an cqual riuiiibcr of shares on partition, .,, such cvidence docs not rcsolve what, if anythjtig, [the] plaintiffs share should he. That issue . . . rcquir[es] . . consideration of the vaiious equities , . . including the iiaturc of the padies relationship aid whether . . . [the] defendant intendecl his dispaiate conlributions to be a gift ); see rilso MrVicAcr 1 . S (u-iiiu, 163 A.D.2d 72 1 (3d Dcpt. 1990); Ilzr11t v. Ilzait, 13 A.D.3d at 1041; Kniriririgcv- v. l cvsilct-, 306 A.D.2d at 20; Dot,- v. J k i t z , 245 A.D.2d at 638; Bc~I-01 Bur-ol, 95 1 . 2 1)crliwry v. Joseph, 297 A.D.2d 329 (2d Dept. 2002), does not reyliirc a di1h-cnt result. I n that case, tlic Court iiicrcly ordered a piirlilioii sale hut did not spccify how the procccds wcrc to bc distributed. Morcovcr, a review ofthe 1-ecord011 appeal shows that tlic respective shares of the pxties was not in dispute. Katlicr, the rocus of the appeal was whether the plaintiff had a sufficient possessoiy intcrest in tlic property to inninlain a partition action, something that is riot in dispute here. -4- [* 6] A.D.2d at 943.3 Accordingly, it is ORDERED that Cheslow's motion for sumiiiary judgment on thc partitiou claim is grantcd to the extent that tlic property sliould be sold alter the Court dctcrmines at a hearing how the procccds should be dividcd in accordaiicc with the equities; and i t is fi~rthcr OlWERED that thc parties shall appcar for a pre-hcaring coiikrcncc on November I , 2006 at 12:OO noon. This constitiitcs tliu dccisioii and order of the Court. R Octobcr 17,2006 Justice Rosalyn Richter 3 'I'here is no merit lo Huttncr's contention that her claiiii o f promissory estoppcl against Cheslow should bar any salc o r the premises hccause a dcfcnsc of estoppel is not available in a partition action. Gro.ssnirri~ Hrik.cr, 182 A.D.2d I 1 19 (4"' Depl. 1992). v. -5-

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