Vicky R. Gabay v Molly Bender

Gabay v Bender 2005 NY Slip Op 09226 [24 AD3d 133] December 6, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Vicky R. Gabay, Respondent,
v
Molly Bender, Individually and as Executrix of William Gottlieb, Deceased, Appellant.

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Order and judgment (one paper), Supreme Court, New York County (Diane A. Lebedeff, J.), entered April 26, 2005, which granted plaintiff's motion for partial summary judgment on her second cause of action and directed the partition and sale of certain real property, unanimously affirmed, with costs.

"A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" (RPAPL 901 [1]; see Bufogle v Greek, 152 AD2d 527 [1989]). While the right to maintain an action for partition is not absolute (see Kopsidas v Krokos, 294 AD2d 406 [2002]); Ripp v Ripp, 38 AD2d 65 [1971], affd 32 NY2d 755 [1973]), the court properly found that no factual issue had been raised respecting defendant's equitable defenses to the partition sought by plaintiff. We have considered defendant's remaining contentions and find them unavailing. Concur—Buckley, P.J., Andrias, Saxe, Nardelli and Malone, JJ.