Taylor v Taylor

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[*1] Taylor v Taylor 2011 NY Slip Op 50413(U) Decided on March 22, 2011 Supreme Court, Westchester County Giacomo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 22, 2011
Supreme Court, Westchester County

Jane Shanky Taylor f/k/a Jane Pollack, Plaintiff,


Diane Flood Taylor, ESQ., f/k/a DIANE FLOOD ESQ., f/k/a DIANE GOLDSTICK, ESQ., Defendant.



Perry Dean Freedman

Ten Bank Street, Suite 650

White Plains, New York 10606

Christian Aaron Pickney, Esq.

190 Willis Avenue, Suite 112

Mineola, New York 11501

William J. Giacomo, J.

The following papers numbered 1 to 11 were considered on defendant's motion to dismiss the complaint and on plaintiff's cross motion seeking, inter alia, a partition sale of real property and the appointment of a receiver and an accounting.


Notice of Motion/Affirmation/Exhibits A-C1-5

Notice of Cross Motion/Affirmation/Exhibits A-B6-9

Reply in Support of Motion10

Reply in Support of Cross Motion11 [*2]

Upon the foregoing papers defendant's motion is DENIED and plaintiff's cross motion is DENIED in part and GRANTED in part.

Factual and Procedural Background

On July 14, 2008, plaintiff and defendant purchased real property located at 24 Whiteman Street, Hastings on Hudson as tenants in common. On December 2, 2008, plaintiff and defendant entered into a prenuptial agreement which states in total: Diane Flood Taylor and Jane S. Pollack do mutually agree that if ever their marriage/union/relationship should be dissolved, the retirement account(s) or monies, personal property, bank accounts or other assets of any kind that were held individually prior to their marriage will be considered the exclusive property of that person and not joint marital property for the purposes of evaluation and distribution of marital assets.In addition, we do both mutually agree that the amount of money each of us paid for our home at 24 Whitman Street, Hastings on Hudson, NY, will be returned to each of us upon the sale of the home. Any profit over and above that which we paid will be shared equally.

On December 12, 2008 the parties were married in a civil ceremony in Greenwich Connecticut.

At some point, plaintiff filed an action for divorce in Westchester County Supreme Court. That action was discontinued by stipulation on October 8, 2010.

Plaintiff commenced this action on November 5, 2010, seeking a sale of the property and an accounting of the proceeds of that sale.

Defendant moves to dismiss the action pursuant to CPLR 3211(a)(1) and (a)(7). In support of her motion, defendant argues that since the parties are still married this Court cannot direct the sale of the premises unless it also alters the legal relationship between the parties. Defendant also argues that their prenuptial agreement precludes the sale of the premises because plaintiff has not satisfied the condition precedent of the dissolution of the marriage.

Plaintiff cross moves for sanctions, a partition sale and the appointment of a referee to conduct an accounting and ascertain the rights, shares and interests of each party. In support of her cross motion, plaintiff argues that she and defendant purchased their home prior to their marriage as "tenants in common" and that their subsequent marriage did not change their rights and interests to the home. Therefore, according to plaintiff, the property is not subject to the laws of equitable distribution. Plaintiff also argues that the parties' prenuptial agreement does not waive their right of partition. Rather, it simply states that upon the sale, each party is entitled to receive the return of their initial contribution. Plaintiff contends that based upon these facts, she is entitled to a partition sale of the home and the appointment of a receiver.

In reply and further support of her motion to dismiss, defendant argues that plaintiff's application of the law "would allow a spouse, by the filing of a partition action, to seek the sale of the marital residence, purchased by the parties pre-marriage without ever addressing issues of temporary maintenance, child support, and exclusive use and occupancy, areas within the preview of the matrimonial parts in a divorce action." Defendant argues that the partition sale of real property held as tenants in common should [*3]be within the exclusive providence of a matrimonial action. Defendant also asks for a 60-day stay of this proceeding in order to file a divorce action and then to seek consolidation.

In reply and further support of the cross motion, plaintiff argues that since there is no pending matrimonial action this matter is properly before this court. Further, plaintiff argues that if defendant wants to commence a matrimonial action there is nothing preventing her from doing it; therefore, a stay of this action is not necessary. Finally, plaintiff argues that defendant does not challenge the partition nor the appointment of a referee. Plaintiff also notes that there are no children of the marriage. Further, since the only asset owned by the parties, held as tenants in common, and was purchased prior to the marriage, it is not subject to equitable distribution.


Contrary to any of the strained argument set forth by defendant, the real property at 24 Whitman Street, Hastings on Hudson, was purchased prior to the marriage as tenants in common and, therefore, is not a marital asset. (See Quattrone v. Quattrone, 210 AD2d 306, 619 N.Y.S.2d 773 [2nd 1994]). Plaintiff as a tenant in common with defendant, regardless of the marital status, has a right to maintain an action to partition real property. (See RPAPL 901 [1]; See Quattrone v. Quattrone, supra; Ripp v Ripp, 38 AD2d 65, 67 [2nd Dept 1971] affd 32 NY2d 755 [1973]).

"A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] 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] ). The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties. (See Arata v. Behling, 57 AD3d 925 [2nd Dept 2008]; Graffeo v. Paciello, 46 AD3d 613, 614 [2nd Dept 2007]).

Here, there are no triable issues of fact regarding the plaintiff's right to possession of the property, which is all that she needed to maintain the present partition action. (See RPAPL 901[1]; Dalmacy v. Joseph, 297 AD2d 329, 330, 746 N.Y.S.2d 312 [2nd Dept 2002]). In response, defendant fails to demonstrate the existence of a triable issue of fact sufficient to defeat the plaintiff's motion. (See Russo Realty Corp. v. Katz, 211 AD2d 673, 622 N.Y.S.2d 458 [2nd Dept 1995]). Notably, there is no divorce proceeding pending so any issue with respect to equitable distribution is irrelevant. Moreover, there is no agreement between the parties waiving their right to partition. (See Lampasona v. Lampasona, 146 Misc 2d 739, 552 N.Y.S.2d 502 [NYSup 1990]).

Prior to the entry of an interlocutory judgment directing the sale of the subject property, an accounting must be made of the contribution for the purchase of the property as well as contribution for the expenses of the property, including but not limited to insurance costs, taxes, rents, and maintenance costs. (See RPAPL 911, 915; McVicker v. Sarma, 163 AD2d 721, 722, 558 N.Y.S.2d 997 [3rd Dept 1990]; Barol v. Barol, 95 AD2d 942, 943, 464 N.Y.S.2d 561 [3rd Dep t1983]; cf. RPAPL 945).

Based upon the foregoing, defendant's motion to dismiss the action is DENIED and plaintiff's cross motion seeking a declaration that the parties hold the property as tenant in common and for the appointment of a referee prior to the partition sale is GRANTED. Plaintiff's cross motion seeking the imposition of sanctions is DENIED. [*4]

Plaintiff is directed to submit, on notice, an order of reference consistent with this decision.

Dated: White Plains, New York

March 22, 2011

_________________________________________HON. WILLIAM J. GIACOMO