HITECH HOMES LLC v. BURKE (2018)

Appeal from order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about July 12, 2016, which granted plaintiff's motion for summary judgment seeking judicial sale and partition of the subject premises, deemed an appeal from the judgment, same court and Justice, entered December 19, 2016, implementing the order, and so considered, said judgment unanimously affirmed, without costs.

The motion court correctly concluded, as a matter of law, that physical partition of the one-family dwelling co-owned by the parties—which has either four stories or three stories plus a basement, is approximately 17 feet wide and 50 feet long, is on a lot that is approximately 25 feet wide and 100 feet long, and has only one source for water and sewer service—could not be made without great prejudice to the owners (see Ferguson v. McLoughlin, 184 A.D.2d 294, 295, 584 N.Y.S.2d 816 [1st Dept. 1992], appeal dismissed 80 N.Y.2d 972, 591 N.Y.S.2d 140, 605 N.E.2d 876 [1992] ).

It is true that “the remedy [of partition] has always been subject to the equities between the parties” (Ripp v. Ripp, 38 A.D.2d 65, 68, 327 N.Y.S.2d 465 [2d Dept. 1971], affd 32 N.Y.2d 755, 344 N.Y.S.2d 950, 298 N.E.2d 114 [1973).  However, the IAS court properly found that defendants failed to raise a triable issue.  The fact that plaintiff has failed to pay its share of the real estate taxes on the property “fails to establish that the equities favor dismissal of the action” (Manganiello v. Lipman, 74 A.D.3d 667, 669, 905 N.Y.S.2d 153 [1st Dept. 2010] ).  Defendants' “desire ․ to keep the premises in the family” is also “an insufficient basis to deny partition and sale” (Crestwood Capital Group Corp. v. Schuermann, 2010 N.Y. Slip Op. 32787[U], *12 [Sup. Ct., N.Y. County 2010] ).  Unlike Arata v. Behling, 57 A.D.3d 925, 870 N.Y.S.2d 450 (2d Dept. 2008), this is not a case where the defendant raised an issue of fact as to whether the plaintiff was even entitled to seek partition and sale because the deed by which he obtained his interest in the property may have been invalid.