2006 New York Code - Action for waste against joint tenant or tenant in common.

    §  817. Action for waste against joint tenant or tenant in common.  1.
  An action for waste may also be maintained by a joint tenant  or  tenant
  in common against his co-tenant who commits waste upon the real property
  held in joint tenancy or in common. If the plaintiff recovers therein he
  is   entitled,   at  his  election,  either  to  a  final  judgment  for
  compensatory damages or to have partition of the property as  prescribed
  in subdivisions 2 and 3 of this section.
    2.  Where  the  plaintiff  elects to have partition, if the pleadings,
  verdict, report, or decision do not determine the rights  and  interests
  of  the  several  parties in the property so held in joint tenancy or in
  common, the court must ascertain them, by a reference or otherwise.   If
  it  appears  that there are persons, not parties to the action, who must
  have been made parties to an action for partition of the property,  they
  must   be   brought  in  by  supplemental  summons  and,  if  necessary,
  supplemental pleadings must be made. When the rights  and  interests  of
  all  the  parties  are  ascertained,  an  interlocutory judgment for the
  partition or sale of the property must be rendered  and  the  subsequent
  proceedings  therein  must  be  the  same as in an action for partition,
  except as otherwise prescribed in subdivision 3.
    3. The plaintiff may elect to take  final  judgment  for  the  damages
  awarded  to  him,  or  that, in making the partition, or in dividing the
  proceeds of a sale, so much of the share of the defendant  in  the  real
  property,  or  the proceeds thereof, as will be sufficient to compensate
  the plaintiff for his damages, and the costs of the action,  other  than
  the  expenses  of  making the partition or sale, be laid off or paid, as
  the case may be, to the  plaintiff.  The  residue  of  the  property  or
  proceeds, not laid off or distributed to the plaintiff or the defendant,
  must  be  laid off or paid to the persons entitled thereto, according to
  their respective rights and interests.