JAMES v. JAMES (2008)

In an action, inter alia, to partition real property and for an accounting, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered May 4, 2007, which granted the plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, with costs.

“One who holds an interest in real property as a tenant in common may seek physical partition of the property, or, a partition and sale thereof unless it appears that physical partition alone would greatly prejudice the owners of the premises” (Bufogle v. Greek, 152 A.D.2d 527, 528, 543 N.Y.S.2d 152;  see RPAPL 901[1];  Graffeo v. Paciello, 46 A.D.3d 613, 614, 848 N.Y.S.2d 264).

 Here, the plaintiff established his entitlement to summary judgment by establishing his ownership and right to possession of the subject property pursuant to a duly-executed warranty deed conveying to him a one-half interest in the subject property as a tenant in common (see RPAPL 901[1];  Duffy v. Duffy, 21 A.D.3d 928, 929, 801 N.Y.S.2d 607;  Dalmacy v. Joseph, 297 A.D.2d 329, 330, 746 N.Y.S.2d 312).   While the right of a tenant in common pursuant to RPAPL 901 to maintain an action for partition is subject to the equities of the parties (see Graffeo v. Paciello, 46 A.D.3d 613, 614, 848 N.Y.S.2d 264), here the equities favor the plaintiff's position (see generally Donlon v. Diamico, 33 A.D.3d 841, 842, 823 N.Y.S.2d 483).

 In opposing the plaintiff's motion for summary judgment, the defendant failed to raise a triable issue of fact as to whether his transfer of a one-half interest in the subject property to the plaintiff was made in reliance on a promise by the plaintiff to reconvey that interest (see Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721;  Doria v. Masucci, 230 A.D.2d 764, 765, 646 N.Y.S.2d 363;  Bufogle v. Greek, 152 A.D.2d 527, 528, 543 N.Y.S.2d 152;  Gargano v. V.C. & J. Constr. Corp., 148 A.D.2d 417, 418, 538 N.Y.S.2d 955).   Accordingly, the Supreme Court properly rejected the defendant's contentions regarding the imposition of a constructive trust, and granted the plaintiff's motion for summary judgment (see Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721;  Doria v. Masucci, 230 A.D.2d 764, 765, 646 N.Y.S.2d 363;  Bufogle v. Greek, 152 A.D.2d 527, 528, 543 N.Y.S.2d 152;  Gargano v. V.C. & J. Constr. Corp., 148 A.D.2d 417, 418, 538 N.Y.S.2d 955).