Una Hamilton, et al., respondents, v. Kevin Hamilton, appellant. (2026)

Argued—January 23, 2026

DECISION & ORDER

W/

In an action for the partition and sale of real property, the defendant appeals from a judgment of the Supreme Court, Kings County (Richard Velasquez, J.), dated May 23, 2024.  The judgment, upon an order of the same court dated May 10, 2023, granting the plaintiffs' motion for summary judgment on the complaint, inter alia, directed the partition of the subject property and its sale at public auction.

ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to RPAPL article 9.

The parties each own a one-third interest in certain real property located in Brooklyn (hereinafter the property) as tenants in common.  In September 2021, the plaintiffs commenced this action for partition and sale of the property.  The defendant interposed an answer.  Thereafter, the plaintiffs moved for summary judgment on the complaint.  The defendant opposed the plaintiffs' motion.  In an order dated May 10, 2023, the Supreme Court, inter alia, granted the plaintiffs' motion.  In a judgment dated May 23, 2024, the court, among other things, directed the partition of the subject property and its sale at a public auction, with an accounting to be performed from the proceeds of the sale.  The defendant appeals.

“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” (Paquet v. Murphy, 242 AD3d 1214, 1215 [internal quotation marks omitted];  see Clarke v. Clarke, 227 AD3d 659, 661).  “Since a partition action is equitable in nature, an accounting is a necessary incident thereto” (Paquet v. Murphy, 242 AD3d at 1215 [internal quotation marks omitted];  see Newburgh Realty II, LLC v. IPA Asset Mgt., LLC, 238 AD3d 887, 890).  Accordingly, a determination as to the rights, shares, or interests of the parties, and whether partition may be had without great prejudice, must be made before a partition or sale may be directed (see Paquet v. Murphy, 242 AD3d at 1215;  Clarke v. Clarke, 227 AD3d at 661).  Moreover, “ ‘[t]he right to partition is not absolute ․ and the remedy is always subject to the equities between the parties' ” (Paquet v. Murphy, 242 AD3d at 1215, quoting Coston v. Greene, 188 AD3d 1147, 1147;  see Goldberger v. Rudnicki, 94 AD3d 1048, 1050).

Here, contrary to the defendant's contention, the plaintiffs sufficiently established, prima facie, that they had an ownership and right to possession of the property pursuant to the deeds governing the property, and that a physical partition would lead to great prejudice, given the acrimonious relationship between the parties (see Paquet v. Murphy, 242 AD3d at 1215;  Clarke v. Clarke, 227 AD3d at 661;  Donlon v. Diamico, 33 AD3d 841, 842).  The defendant failed to raise a triable issue of fact in response on the issues of ownership and as to whether the equities favor his position (see Manganiello v. Lipman, 74 AD3d 667, 668–669;  Bufogle v. Greek, 152 A.D.2d 527, 528;  see also Hitech Homes, LLC v. Burke, 159 AD3d 489, 489–490).

However, the Supreme Court failed to ensure that there was an accurate accounting of the subject property before the entry of an interlocutory judgment directing its sale (see RPAPL 911, 915;  Colley v. Romas, 50 AD3d 1338, 1340;  Donlon v. Diamico, 33 AD3d at 842).  Accordingly, the judgment must be reversed, and the matter remitted to the Supreme Court, Kings County, for further proceedings pursuant to RPAPL article 9 (see Goldberger v. Rudnicki, 94 AD3d at 1050).

The parties' remaining contentions either are without merit, need not be reached in light of our determination, or are improperly raised for the first time on appeal.

DILLON, J.P., CHAMBERS, WAN and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court